Is our American form of government intended to be limited and narrowly defined in its scope or was it supposed to be unlimited and unrestrained in its reach? We explore the five clauses of the Constitution most often misinterpreted and abused: The General Welfare Clause, The Necessary and Proper Clause, The Interstate Commerce Clause, Treaty Law, and the Supremacy Clause. Then we look at modern day examples of this abuse and misinterpretation.
Welcome to Checks and Balances in the Constitution. Hopefully we will have some fun today. It’s interesting historically the Constitution had quite an interesting historical background. The Founders had just come from a very, very strong centralized government, hadn’t they? Written very strong and very powerful centralized government. They said what we need to do is we need to decentralize and not have a strong central government. So what we brought in after winning the War for Independence was the Articles of Confederation. The challenge of the Articles of Confederation, though, was it offered too weak of a central government. They found themselves in a dilemma of swinging the pendulum from here to there. Strong government or not a strong central government. What they came up with as a solution was the Constitution which gave more power to the central government than the Articles of Confereration had given, but it checked and balanced that power so the central government couldn’t grow bigger and stronger because of those checks and balances. We’re going to explore those today.
We are going to hit some definitions. We always start with some definitions to get a baseline for where we are. The first defninition I want to hit is sovereignty. Sovereighty is kind of a big word but it’s a really simple concept. It’s the idea of the highest level of decision making authority; a state of supreme rule; also self rule. One way I like to say it is sovereignty is the buck stops here. I am sovereign, I make decisions for myself. We all know there is one ultimate sovereign in the world and that is God. Sovereignty is the idea of self rule. You’re in charge of yourself. That’s what sovereign means.
Secondly, we’re going to discuss this word jurisdiction. Jurisdiction is also a big word, but it’s very simple. Jurisdiction is the extent or range of power or authority. So, you have a sheriff who’s in this county who pulls someone over. Can they do that? Yeah, because it’s in their jurisdiction. Can a sheriff from another county pull me over? No, it’s not in their jurisdiction. It’s not the range of their authority.
Thirdly the definition of state. State is interesting because we look at the 1828 Webster’s Dictionary. It calls the state an independent country; a geographic and people-separated area distinct from other nations or lands. We tend to think of a state as kind of a subordinate unit to a nation. We’re states and we’re subordinate to the national government. You look at it and what he says and what the Founding Fathers took the word state to mean was an independent country.
Another definition is federal. Federal is derived, this is according to Webster’s 1828 dictionary as well, it’s derived from an agreement or covenant between parties, particularly between nations. We have a federal government which is essentially a unifying of sovereign nations that come together under a federal government to form the United States of America. You notice in the Declaration of Independence, it’s kind of interesting, united is a small little word and states is this huge word because it’s all about the states unified for certain reasons. These United States.
Federalism that’s an interesting concept, or a take on this word federal. Federalism is based on the idea of different levels of government. We know there’s local government, and there’s county, there’s state and there’s federal government. Those are different levels. That’s what federalism is, different levels of government. It’s really based on this concept of governing at the lowest appropriate level. Never, ever give to a higher level of government that which you can do yourself at a lower level. Don’t move it up the chain. Keep it as local as possible. That’s the principle of federalism. The principle of federalism is found all through the Constitution, and it’s critical. It’s critical because what is it doing? It’s decentralizing government. That’s the essence of the freedom. Less government more freedom.
Division of Power
Now we’re going to move on. We’ve got hopefully a foundational idea of some of the definintions. We’re going to move on to this slide that I think is interesting because many people say that’s it. That’s checks and balances. We’re all done. There’s nothing else to talk about.
SLIDE CHART There are three different branches of government. Legislative which makes the law. The Executive which carries out the law and the Judicial which judges the law. We all know that right? Pretty simple stuff. We’re all taught essentially, at least what I was taught, is each one of these has a check and balance power on the other. It ends up being six different powers. Let’s discuss these a little bit.
The executive has the power over the Legislative. When the Legislative makes the law, when Congress makes the law, the Executive, the President can what? He can veto that law can’t he? That’s one check they have on the Legislative power. The check the Executive has on the Judicial power is they’re in charge of appointing the judges. You got your Executive checks and balances there.
What about the Legislative? Legislative can check the Executive. When the Executive chooses to veto a law what can the Legislative do? They can override that veto with a 2/3 majority vote. The Legislative has a check on the Judicial power because the Senate has to concur on Supreme Court appointments. The Executive appoints judges but those judges have to be agreed upon by 2/3 of the Senate and say yeah we’re going to go ahead and allow that person to be put in as a federal judge.
Now we look at the Judicial, their check and balance. The one that people know about here is Judicial checks the Legislative. When the Legislative makes the law the Judicial can rule that law to be unconstitutional. Then also one that’s less known but still there is Judicial checks the Executive by issuing court orders and telling the Executive to carry out this order from the court. Like I said most people look at that slide and say we’re done, that’s it, isn’t it? Is there anything else to talk about? It’s interesting when we look at the slide how much we’re indoctrinated to understand that that’s all of checks and balances. When we look at where are those checks and balances, those are all at the federal level. They’re all at the federal level, so we tend to think the only check and balance that exists is at the federal level. We’re going to explore this a little bit more and realize there’s so much more to checks and balances than just what exists there. These are very simplistic versions. There are many other checks and balances that exist that we’re going to look at.
We’re going to start out with a really good quote by James Madison. QUOTE He says, “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments,” I like this quote for a lot of different reasons but first because it says the power is surrendered by the people. Remember in the first presentation we did? The power is in the people and the people surrender that power to the government to act on their behalf as their agents. I think he’s right on. I know he’s right on. He’s the Father of the Constitution. Very, very good point. The people surrender that power. The key word I think here that’s interesting is this word divided. That power is divided between two distinct governments. What are the two distinct governments he’s talking about? The federal and the state. The power is divided between the federal and the state. He goes on to say this, “and then the portion allotted to each subdivided among distinct and separate departments.” The word I like to point out there is this idea of separate. The separation of powers. Within each different level of government there is a Legislative, Executive and Judicial branch. At the federal level there’s Legislative, Executive and Judicial. At the state Legislative, Executive, Judicial. At the county it’s the same thing. You see as he says, he goes on to point out, “Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
Isn’t that beautiful? Look at that in comparison to the previous slide and you say oh, yeah. Checks and balances aren’t just horizontal. They’re not just the separation of powers they are also the division of powers. The check of one government over another. That’s something we’ve lost. It’s a beautiful part of our Constitution, but it’s something we’ve definitely gotten away from. We just think of the separation of powers at the federal level that they check each other and it’s all horizontal. The division of powers is the beautiful thing.
Madison goes on to say, “Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will…be a federal, and not a national constitution.” Those two words that are italicized there, national and federal. What’s the difference? In a national government, like we talked about earlier, states are subservient aren’t they? They do what the nation tells them to do. In a federal government, you have a federation of independent, what some people call mini nations, that come together and say we’re federalizing. We’re not subservient, we don’t just do whatever they tell us to do. We’re coming together to form this government.
When the colonies, the states got together they said look, we’re independent, we’re sovereign, we’re fine. We don’t need any other government, but there are a few things we’d like the government to do, what we need a centralized government to do. We’re going to go ahead and outline what those things are. We’re going to write a Constitution and give them certain enumerated, listed powers. Here’s what you can do. Please do those for us, but don’t do any other ones.
SLIDE CHART When you look at the United States as a whole, the United States together when they operate and do things together, those are the powers that we’ve given to the federal government, to do the external things. Not the internal things. The internal things are for the states. The external things are for the United States. There are a few minor exceptions, and guess what, those exceptions are listed in the Constitution. It says very clearly here’s what the federal government can do when it has to do with internal affairs. Most of those affairs of the United States that the federal government handles are external issues.
QUOTE Thomas Jefferson put it this way in defining, remember this idea of federalism, the idea there’s different levels of government. “Let the [federal] government be entrusted with the defence of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself.”
That quote just screams federalism. Every level has its own jurisdiction. They take care of their own selves, and they all have different levels. Not that anyone’s above any, they’re all just different. Looking back at this map. You look at Wyoming. All the things that concern Wyoming internally are issues of the State. The state takes care of those. Our challenge today is almost all of our issues that are internal are dealt with and controlled by our central government from D.C. That’s a problem. It’s a major problem, because that’s not their role. They’re crossing jurisdictional lines and they’re creating all kinds of chaos and havoc. If they’d let us be free, which we are, we’re sovereign, and take care of our own internal issues we wouldn’t have all the many problems we have today. Or many of the problems we have today.
QUOTE Jefferson says or asks the questions here. “What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and power into one body.” That’s what has happened. Throughout history, it’s a historical fact that what has destroyed freedom is centralizing of power.
He says also, “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre 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.”
Why has this happened? It’s prophetic isn’t it? You look at these Founding Fathers and they weren’t just guessing. Once again what they wrote is based on principles and human nature. They understood, they saw, they were historians. Destruction of freedom always comes from centralized government, and it’s going to render powerless the checks of one government over another. They were able to see and say this is going to happen. D.C. is going to take over, watch out. Interesting and prophetic words that they had because that’s what’s happening today isn’t it?
Where does this misunderstanding come from? Where is it that we have this idea? I don’t know how you guys are but I’ve always grown up thinking D.C. is in charge and they tell us what to do. It’s kind of how it is. It’s America and we’re proud of that? Where does that come from? I think, in my opinion, it comes a lot from misinterpretation of Article VI of the Constitution.
SLIDE Article VI, Clause 2 says this, “This Constitution, and the laws which shall be made in pursuance thereof…shall be the supreme law of the land…” This is commonly known as the Supremacy Clause. We talked about this in our first presentation, of power in the Constitution. Supremacy Clause. A lot of people read this briefly and say it says right there federal laws trump state laws. Is that what it says though? It doesn’t say that. It says the Constitution is the supreme law of the land. It doesn’t say the federal government. What if there is a federal law that contradicts a state law? Most peope say right away well the federal law trumps the state law. It’s not an issue of federal or state. It’s an issue of jurisdiction. Does the federal have the right and the authority to act in that area, or do they not? If they don’t, they don’t just trump the state just because they are federal. The federal government isn’t a higher level of government, it’s a different level of government. We tend to tie that Supremacy Clause into supremacy of federal government over state government, and it’s simply not true. It’s in the Constitution because the Constitution doens’t say federal government is in charge, it says the Constitution is in charge.
Moving on a little bit more to the end of Article VI here. “…Any thing in the Constitution or laws of any state to the contrary notwithstanding.” It’s easy when you first look at that to say oh wait it says right there though anything in the state constitution or state laws that’s contrary to this federal law trumps it. That’s just easy to think is what it’s saying. But it’s not saying that. It’s saying we’re establishing clear lines of federalism, clear lines of authority and any crossing over, that’s what’s unconstitutional. Not that federal law can do whatever they want to and if the state ever tries to contradict it then the federal wins. That’s not what it’s saying is it?
I may have done a bad job of explaining that, but Madison does a great job explaining it. Here’s what he says, this is great, this is a gem. QUOTE He says, “In [a national government], (remember we’re not a national government are we? We’re a federal government) all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure.” In a national government you do whatever they tell you to do. He goes on to say, “In [a federal government] (which is what we are) the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.”
Isn’t that cool? That’s what he’s saying. This jurisdiction that’s set up says we’re no more subject to the federal government than the federal government is subject to us. It’s a matter of jurisdiction, a matter of delineating what and who is in charge. That’s the principle of federalism.
The Constitution itself, when it governs, it itself in the Tenth Amendment, it regulates and restricts the federal government’s abilities and powers. We talked about this earlier as well. SLIDE It says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, those powers are reserved to the States respectively, or to the people.”
When the Supremacy Clause says the Constitution is the supreme law of the land, the Constitution itself puts restrictions on the federal government and what they can and can’t do. Quite simply if the power is not given it is not there and it’s reserved for the states or the people.
An interesting point that I like to make here. I’ve had a lot of people tell me, constitutional lawyers who say, there’s this thing called plenary power, absolute power. The states have absolute power. Does that sit well with you? That doesn’t sit well with me. People have absolute power and they choose to delegate to the state certain powers and they choose to delegate through their state to the federal government certain powers. But the only ultimate power lies in the people. Remember the Declaration, deriving their just powers from the consent of the governed. Only the governed who actually have rights given to them from God can delegate power and authority to higher levels of government to act as their agent, to act on their behalf. To do things they could do on their own but they allow them to do for them. A lot of people misconstrue my opinion, misconstrue the Tenth Amendment to say, well, yeah it shows the ultimate power is in the states. It’s not in the states, it’s in the people. They’re the ones who choose who they give it to.
Human Nature as a Check
There’s an interesting quote here by James Madison. I get really excited about, in fact I had like 15 of his quotes, I had to cut them all down because there were just too many. But this quote I really enjoy. QUOTE He says, “The interest of the man must be connected with the constitutional rights of the place.” He’s starting to talk about how do you form these checks and balances? How do you put them together in the Constitution? You have to make sure the place or the position coincides with the natural inclination of human nature, of people and how they are. Don’t go off this altruistic idea that they will always want what’s best for people. Let’s just look at real human nature and tie it together. His quote goes on to say, “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all refections on human nature?”
Isn’t that what government is? It’s a reflection on human nature so why did they build that in there? Why don’t we build a natural check and balance? If I have the power to make a law, I’m going to naturally say whoa you can’t take that power, that’s my power. That’s how I am as a human too, I want
to guard my power, it’s mine. I’m not going to let someone else have it. “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” James Madison.
Does that get you guys excited? It gets me excited. Those quotes I read are awesome and you realize these are our Founding Fathers, these guys have got it. This is an incredibly Godly and principle based Constitution they put together. Understand the true nature of man and principles of freedom. That just gets me excited.
People Have the Checkmate Power
Now we’re going to get into the Constitution a little bit.
SLIDE This slide is called Constitutional Checks on Power. It’s kind of a messy slide, there’s a lot to it. We’re going to build the ladder on the left hand side. The interesaction between Legislative and Executive. On the right hand side we’re going to build the ladder between the Legislative and the Judicial. What I’m going to do is give little quotes and little references to the side of where the Constitutional reference is for these power. For example:
Congress passes a law. Where does Congress have the authority to pass a law? Art. I, Sec. 1, Clause 1. All legislative powers herein granted shall be granted in a Congress of the United States. As an example. Now we’re going to build this ladder. Congress passes a law and on the left hand side we’re talking about interaction between the President. We already talked about this before, what can the President do? If Congress passes a law the President can veto that law. He can veto it and the reason he can is because of Art. 1, Sec. 7, Clause 3 states that he can. It specifically enumerates that power.
When the President vetoes a law does Congress have any recourse on that? Yeah, Congress can override the veto with a 2/3 majority vote. That’s also found in Art. I, Sec. 7, Clause 3. You have Congress, then you have the President vetoing, then you have Congress overriding this veto. Does the President have any recourse at this point? Most people shake their heads and say no. When you look at it and it’s really interesting, even though you don’t like this and I don’t like it either. It doesn’t settle well, it took me a while to really get my mind around this. The President,what he can do is he or she can refuse to enforce the law. That’s in violation of Art. II, Sec. 3, Clause 1. They are supposed to faithfully execute the laws of the union. As I’ve studied the Founders I’ve really realized the thing they feared the most and wanted to make sure is that those who made the law can execute the law. They wanted to separte those powers. This whole idea of checks and balances. A natural check and balance is he who makes the law is different that he who executes the law. Naturally the person who executes it can say I’m not going to execute that law. It’s a natural check and balance. You say wait a second, but that’s happening today, isn’t it? Think about our borders, think about the defence of marriage act. Is the executive choosing not to enforce? Yes. Is he choosing not to enforce in violation of the Constitution? Yes. But it’s a natural check and balance that does occur. We’re going to leave that there because you’re probably a little bit frustrated. We’re going to go to the next slide.
SLIDE On the right hand we’re going to build this ladder again. Congress passes law, Art. I, Sec. 1, Clause 1. What recourse does the Judicial Branch have on Congress passing a law? They can rule the law to be unconstitutional. That’s according to Art. III, Sec. 2, Clause 1. When the courts rule a law that Congress passes to be unconstitutuional, does Congress have any recourse on the courts? Most people would say no. No, it’s a done deal. They interpreted what the law said and it’s done. It’s really interesting that Congress most definitely does. Congress can limit the appellate jurisdiction of the courts and/or dissolve and reorganize the lower courts.
A lot of people say, wait a second. Are you telling me that the Supreme Court makes a judgement, issues an opinion and says we’re interpreting the Constitution this way and the Congress can actually override that? Yeah, they can override that. How do they override it? Through Art III, Sec. 2, Cl. 2, they can limit the appellate jurisdiction. What does that mean? Appellate is kind of a big word. Appellate simply means the appeals process. Someone has a case they bring it before the judge, the jury they have this result that they don’t like so they appeal it to the Supreme Court. The Supreme Court says here’s what we rule. Congress says we don’t like that ruling, we think it’s a bad opinion. They can say thanks for your opinion, you’ll no longer be ruling on those issues because we’re going to limit the appellate jurisdiction. You’ll no longer hear issues regarding that topic.
For instance, your example is abortion. Roe V. Wade, when that came through 80% of America was against abortion but somehow the Supreme Court found somewhere in the Constitution, oh no a woman has the right to kill her child. Never mind the rights of the child to live, a woman has the right to kill her child. The people were saying whoa, whoa we don’t like that, but we say it’s established law. The Supreme Court made that decision we have to follow it. What should have happened is Congress should have said you’re wrong. Thanks for your opinion, that’s all it is is an opinion. We’ll no longer let you rule on any abortion cases because you got that wrong. We’re not going to let you perpetuate that misinterpretation of the Constitution.
Why did Congress fail to step in and do that? Congress represents us that’s why. We’re in charge. We’re not run by some group of Supreme Court justices. The other thing is Art. I, Sec. 8, Cl. 9 says that Congress can dissolve and reorganize lower courts. We have the 9th Circuit District Court of Appeals In San Francisco. The liberal court that always gets it wrong, at least according to conservatives and Christians, etc. What can happen? Congress can say you know what you’ve done such a bad job you’re out of a job. You’re done. They can do that. Why? Because we the people are in charge. Congress can trump the Supreme Court.
SLIDE We’re buidling this ladder here, going up one more step. Does the Judicial have any recourse over Congress? They do. In this situation SCOTUS maintains the original jurisdiction & judicial power. According to Art. III, Sec. 2, Cl. 1 it’s not that the Congress can never limit their original jurisdiction or the Supreme Court, they can only limit the appeals cases that come through the appeals process. The original jurisdiction they can’t touch. The original jurisdiction is for the Supreme Court to decide on those federal controversies, those federal cases that happen, determinations etc. They still have the judicial power. The Supreme Court can still judge laws that are put out by Congress to be unconstitutional. They can’t say you can no longer judge, they still have the ability to judge laws to be unconstitutuional.
We’ve built these two ladders. On the left hand side, it kind of bugs because the President eventually he’s the one who is in charge over Congress. On the right hand side the Supreme Court who trumps Congress. Does that sit well with us? No, we’re Americans, we’re in charge. What’s going on here? The question then becomes does Congress have power over the President or the Supreme Court? Yeah, they do. They can impeach them. Congress with a 2/3 vote can impeach the President and with a 2/3 vote they can impeach members of the Supreme Court or the other federal court justices. That’s according to Art. I, Sec. 2, Cl. 5 & Art. I, Sec. 3, Cl. 6.
It’s a little known fact that not a lot of people know about but Congress can actually impeach members of its own Congress with a 2/3 vote as well. Let’s say in order to do that they can impeach Congress with the aurthority in Art. I, Sec. 5, Cl. 2. Let’s say that doesn’t happen. Let’s say Congress is in charge here. They are aren’t they? They’re in charge, they trump and we like that. Is anyone in charge of Congress? We are, aren’t we? The people are in charge of Congress. We the people can vote members out of Congress. Obviously that’s according to Art. I, Sec. 2, Cl. 2 & Art. I, Sec. 3, Cl. 1 (or XVII Amendment) which now has been superceded by the 17th Amendment talking about election of senators.
We the people are in charge and we’re on top aren’t we? How does that sit with us? That’s Americanism, isn’t it? We the people are in charge. We’ve talked about all these check and balance powers all the way up these ladders. I like to call the power the people have the checkmate power. We talk about check, check, check, but the people have the checkmate power in the end. Which brings us to an awesome quote by Abraham Lincoln. QUOTE He says, “We, the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.” Isn’t that a great quote? Isn’t that what it’s saying? It’s our job and we the people are in charge.
If we the people are in charge then there are some duties incumbent upon us, aren’t there? We’re free, but with that freedom comes some duties. George Washington makes this point. QUOTE He says, “A primary object should be the education of our youth [and ourselves] in the science of government. In a republic, what species of knowledge can be equally important?” We need to undstand true principles of freedom and true principles of republicanism. If we don’t we deserve every bit of bad government we get, don’t we? He also makes this second point that I think is a second incredibly important pillar. QUOTE “Human rights can only be assured among a virtuous people. The general government…can never be in danger of degenerating into a monarchy, an oligarchy, an aristocracy, or any despotic or oppressive form so long as there is any virtue in the body of the people.”
I think he hits the nail right on the head. Two points, first to love and know the principles of the Constitutuion. Secondly to love and know God and to act that way. Act virtuously. You have those two things and then it’s good that the government is on the shoulders of we the people. If those two things aren’t there then it starts to crumble, doesn’t it? Our moral fabric and our freedom fabric is being torn apart and that’s what we’re seeing in the country today. We the people are in charge and we the people in general are apathetic and are not moral or not virtuous. That’s why we have the struggles today.
Now we’re going to get into some of the actual words of the Constitutuion. This is where we get into the fun part of finding out what it says and looking at it and hopefully it’ll be just as fun as what we hit before and whoa, I didn’t realize that. This is new stuff and it’s exciting because the Constitution has those answers.
SLIDE The first thing I wanted to point out is a trial by jury. If we the people are in charge what’s a trial by jury say? Amendment VI says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…” The very next amendment, Amendment VII says, “In suits at common law…the right of trial by jury shall be preserved…”
In these trials who ultimately decides our guilt and our innocence? A jury, not the judge, not the system, not the bureaucracy, the jury. Now complete the sentence for me. A jury of their…peers, right? That’s what we all hear and understand. Why our peers? Why are they the ones who are in charge of our guilt or innocence? Because that’s where freedom is found. It’s not found in the bureaucracy. It’s not found in the system, it’s found in the people. Common sense people who think like we do, live like we do and say I think they’re guilty, I think they’re innocent and that’s where the power lies, it’s in the people. A trial by jury offers that as well, doesn’t it?
Supreme Court Jurisdiction
Moving on to Article III, Section 2, Clause 2:
SLIDE “In all other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact…” What if someone who goes to trial isn’t happy with the verdict? What opportunity do they have? They can appeal it, can’t they? They can appeal it through the process until eventually it ends at the Supreme Court. The Supreme Court has that jurisdiction, like it says here, to rule on any of the appellate, remember we talked about appellate meaning appeals, they rule and they are the ultimate authority of the appellate jurisdiction. They can do that. Now, it’s interesting when the Supreme Court when they issue a decision what are those decisions called? The decisions, even if the Supreme Court issues them, they are called opionions. That’s all they are. SLIDE Many, many times it’s a 5/4 split decision. The majority opinion is issued by those who are in the 5 court and the minority opinion is issued. I’ve done a lot of research on this and you can take this to the bank. These are very technical terms here. What happens here when it’s a 5/4 split decision means there are 5 smart justices, and there are 4 dumb ones. Is that what it means? That’s not what it means. What it means is there are 5 that are right and there are 4 that are wrong. It doesn’t mean that either does it? What it really means is there are 5 who won and 4 who lost. That’s what a 5/4 split decision means. SLIDE What did those 5 win? They won a contest of opinions! It’s interesting because when that opinion is issued does that mean that now they have reestablished what the Constitution means? It is now the law in the past and in the future, they have reestablished, the Supreme Court has now reeinterpreted the Constitution to mean this thing. From here on and forever. That’s what we tend to think isn’t it? That’s not what the Constitutuion says.
SLIDE Let’s look at what the constitutuion does say. Article III, Section 2, Clauses 1 & 2.
It very clearly states the judicial power shall extend: This is a quote from the Constitutuion. In other words, the jursdiction of the Supreme Court shall extend
-To all CASES, in law and equity, arising under this Constitutuion…
-To all CASES affecting ambassadors…
-To all CASES of admiralty…
-To CONTROVERSIES to which the United States shall be party…
-To CONTROVERSIES between two or more states…
-To CONTROVERSIES between citizens of different states…
-To CONTROVERSIES between citizens claiming land…
-In all CASES affecting ambassadors…
-In all other CASES before mentioned the Supreme Court shall have appellate jurisdiction
This opinion that’s been issued that’s changed and misinterpreted or whatever it may do, it applies to the case. Just to the case. Roe V. Wade established law that we all have to abide by now? No, an opinion that’s issued in the case of Roe V. Wade. Yet due to the apapthy and ignorance of the American people we just say, doesn’t the Supreme Court tell us what it says? If they do we just have to do what they tell us. Understanding what the Constitution says instead of what the media or schools push down your throat, understand what the Constitution says, though, helps us understand that it only applies to the case. And you can see why it should only apply to the case because it’s just an opinion and in some cases it’s razor sharp. It’s 5/4. That opinion is not going to change the rest of course of history, it’s just going to change and be the official law in that case, that controversy.
Piggybacking on that idea you have elitests, you have progressive people who are wanting to be in charge and have a bigger central government. Why would they not push that idea? It’s a great idea to push that? What do you need? You only need to control 9 supreme court justices. You don’t need to control the people, you just have to control the justices. If you can control them you can write law, rewrite law, reinterpret law. It’s so much easier to control 9 people than it is to control 300 million people, isn’t it? It’s wrong, it’s absurd, it’s not true. The reason we know it’s not true is because the Constitutuion says, it says it very clearly in Article III, Section 2, Clauses 1 & 2. Their jurisdiction is just to the case or the controversy.
Where did all these shenanigans start? Where did the supreme court start saying we’re in charge of deciding what the law says. Where did that start? Unfortunately it started way back in 1803, right after the Constitutuion was ratified.
QUOTE Marbury V. Madison. Chief justice John Marshall said this. “…it is emphatically the province of the judiciary to say what the law is.” Now, it is the provice of the judiciary to say what the law is. They must interpret the constitutuion and apply the law or not apply the law, but only in the case. People take Marbury V. Madison and say judicial supremacy reigns. The Judicial, they decide the Supreme Court decides what the Constitutuion means. No, they decide what it means in that case, and if they’re wrong what are the consequences? They can ultimately lead to impeachment. The other consequences are we are no longer going to let you hear appeal cases on that because you misunderstand, misrepresent, misinterpret the Constitution. They can do that, but it’s not all encompassing. It’s not what we’ve all understood to believe is Judicial, they’re supreme. Whatever they say is what the Constitution is. That is not true.
QUOTE There’s a man named William Blackstone, he was an incredible lawyer in Great Britain. He was one of the mentors of the Founders. He said this. It’s very, very clear. “…whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, (when there’s a conflict between what the people think and what the people who they elected think, because we have a decision to make. It’s like when the Supreme Court issues a bad ruling of something we don’t like.) it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.”
Who is in charge of the Constitution? Is it 9 Supreme Court justices or is it we the people? It’s we the people, isn’t it? When there’s a discrepency between what they say and what we think, who must decide? We the people. That coincides with Article V of the Constitution. Article V of the Constitution says very clearly the only way to change the Constitution is through the Amendment process. 2/3 of the House who are elected directly by the people, 2/3 of the Senate and 3/4 of the convention of the states so that the people are integral. They are the ones who decide when you change the Constitution. Judges can’t change it, only the people can chage it. That coincides with what William Blackstone is talking about, the people are in charge. Society itself must decide. You can’t change the Constitution simply by Supreme Court ruling. They may misinterpret it, but luckily the boundaries are the case, it desn’t go outside that case. Luckily there are also consequences. Congress can say fine, we’re not going to let you hear any more of those cases, or if it’s so bad we’re are going to impeach you. There are consequences to that. It’s not what we hear to day, once a decision is made it’s over, great now what?
SLIDE Moving on here to Article III, Section 2, Clause 2, we’ve already read this. We are going to read it again and see this big word that comes out. “In all other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact…” What’s the big word that pops out? Should be this word cases. In all of the cases their jurisdiction only applies to the case. A ton of people, me included, I’m not putting anyone down, we tend to think somehow a law when it comes out of Congress, off the President’s desk, somehow it goes through the Supreme Court and they have to say we like it or we don’t like it. That’s not what happens. They only time the Supreme Court rules on a law is when that law is part of a case or a controversy and they get to rule on whether to apply that law or not. It’s only when it comes to them through the case very clearly, their only jurisdiction is when the case brings that up, then they can apply it or not apply it in that specific case based on the specific circumstances and facts of that case.
SLIDE Here’s something we talked about before. This is something that probably was like, whoa this is way different. I hadn’t really thought about. We’re going to hit a little more deeply here. This idea the end of Article III, Section 2, Clause 2 “with such exceptions, and under such regulations as the Congress shall make.” The Supreme Court has appellate jurisdiction, but it’s regulated and exceptions can be made by who? By Congress. Congress can say, nope. You’re not going to hear those cases anymore, because you’re wrong. You issued a wrong opinion and we’re not going to allow that to happen. This is where it comes up. We talked about it briefly on that other slide when we were building the ladders, but this is the clause that’s powerful. It’s really interesting when you bring this up people say whoa, what are you talking about? Once the Supreme Court says what the law is it is, you can’t change it back. Well, yeah actually you can through the Constitution. That’s nuts. That’s crazy talk. You’re talking about anarchy. No, no, no, I’m talking about the Constitution. If they make a wrong ruling you don’t have to deal with it, you can overturn it essentially. You can’t overturn that ruling in that case, but you can never let them make the wrong decision in the next place. Or you can impeach them and say you are done judging, you’re wrong, you’re off. That’s a powerful idea because then we’re not peons, we’re not servants, we’re not slaves to some big federal government. We’re free. We’re free and we can say no. No we don’t agree with that opinion. Thanks for your opinion. We’re not going to listen to it anymore.
SLIDE Article III, Section 2, Clauses 1 & 2. We’ve hit this before. We’re going to hit it in a little more detail now.
“The judicial power shall extend to all cases, in law and equity…”
“The supreme court shall have appellate jurisdiction, both as to law and fact…”
There are four words that kind of jump out to me on this page. I’m maybe going to do a little bit of reading here to make sure I get it right, it can kind of get confusing. I want to make sure I say it correctly. The first word that comes up is law. Very clearly does the Constitution give the Supreme Court the right to judge our law? The right to judge the Constitution? We like to say no, no, but yeah they do. They have the right it says it right there. Their judicial power shall extend to all cases in law and equity. They can judge the Constitution. They can interpret the Constitution. Once again like we talked about before, there’s a consequence to them misinterpreting it. We can say you’re no longer going to interpret it, we’re not longer going to let you have appellate jurisdiction or we can impeach you.
What happens is they’re supposed to take the Constitution and use that as their foundation, their guidepost to rule on the laws in the case, the controversies that come before them. The problem is too often the Supreme Court isn’t saying here’s what the Constitution says therefore this law isn’t constitutional. What they’re saying is, here is what the Constitution says, here’s what I think it should say, and therefore ruling to do this and this and this. We’re going to strike down the law. Does the Supreme Court have the ability to strike down the law? No, all they have the authority to do is to issue an opinion on the law. That’ when we get to this idea about law.
The next word that comes up is equity. Is the intent of the law being fulfilled? In the case brought before the court are the individuals rights being abused? Isn’t that the whole idea of the appeals? I don’t agree with your decision so I’m going to appeal it up and they can rule and say is equity being served here? Is justice being served? Their jurisdiction, that’s part of what they’re supposed to do.
The next one here is the word fact. Did the events and circumstances occur? Did in fact the 90 pound woman shoot and kill a 320 pound man? Yes. Facts are established.
The next part here is the law. Once again we have the law showing up. Does the law apply in this case? Well the 320 pound man happened to be a midnight shooter who was threating to kill the woman. She shot him. Does the law that prohibits human beings from killing each other apply in this case? No. If we have a precedent, we can work on this precedent and say well good, now we know that all 90 pound women can kill 320 pound men. Is that true? No, that’s laughable. That’s not true. It’s specifically to the case, the circumstances of that case. If we had a precedent now, that would mean all 90 pound women can kill 320 pound men. That’s ludicrous, that doesn’t make any sense. You can see how case precedent can get out of control. What happens in case precedent? In case precedent, courts and decisions always look back to the case, and to the opinion of the court. The lawyers comment, etc., etc. instead of looking back to the Constitution. We’re a rule of law. We’re a republic. We should look back to the Constitution. Not back to the previous case. The Supreme Court can continue to not apply laws in certain cases and we can know and have that certainty that’s what’s going to happen. Stare decisis, a function of what has happened in the past.
The Supreme Court doesn’t have the authority to strike down a law. The only authority that’s given to make or repeal laws is given to Congress. Article I, Section 1, Clause 1, all legislative powers herein granted shall be vested in a congress. They are the only ones who do it. When the Supreme Court issues an opinion and Congress agrees with that opinion they can do something. They can write a law that says you know if we’re wrong we’re going to go ahead and write a law that supercedes the previous law that agrees with the Supreme Court’s opinion. When the Supreme Court issues an opinion that Congress doesn’t agree with, or the people don’t agree with, they don’t have to just abide by that. They have three constitutional options. The first option is to say look, we’re going to write a law that directly contradicts your opinion. Your opinion is wrong and we’re going to write a law that says that it’s wrong. Secondly they can limit the appellate jurisdiction. You’re no longer going to rule on those cases. Effectively the courts are no longer continuing to misinterpret the Constitution. Thirdly they can, like we talked about, impeach them. Constitutional solutions that deal with an out of control Supreme Court.
QUOTE Alexander Hamilton had an interesting quote. He said, “…the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution;…It may truly be said to have neither force nor will, but merely judgment…” Isn’t that interesting? All the Supreme Court can do is issue judgments, issue opinions. That coincides with what we’ve been talking about, doesn’t it? They don’t have force or will. They can’t make things happen. They can’t make law. They can’t execute law. All they can do is judge and throw out opinions.
QUOTE Thomas Jefferson says, “[The] germ of dissolution of our federal government is in the [composition] of the federal judiciary…working like gravity by night and day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief with a field of jurisdiction until all shall be usurped.” Some people say, wait. Who’s right and who’s wrong there? Hamilton’s saying the Supreme Court won’t infringe on any rights. They don’t have any power. Thomas Jefferson says yeah, the supreme court, watch, they are going to advance and become mighty. Who is right? They’re both right because constitutionally the Supreme Court shouldn’t be infringing on our rights, infringing on our laws. In reality what’s happened is what Jefferson said. They have advanced their noiseless step until they have usurped all power.
QUOTE This is one of my favorite quotes. Jefferson also says, “…to consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” If just the Supreme Court are the only ones who can decide what the Constitution means, that places them in an oligarchy. What does oligarchy mean? It means rule of a few. In this case how big would our oligarchy be? How few people would run our country? Nine, right? The nine justices of the Supreme Court, but it’s better said it’s actually only 5 because all you need is 5 to form a majority opinion. Jefferson says you let the Supreme Court just decide and be the ultimate arbiters in all constitutional decisions and we’ll have an oligarchy. We’re not an oligarchy. We’re a republic, we’re a rule of law. The people have representatives who make their laws. Not an oligarchy of judges who make their laws.
QUOTE Hamilton goes on to say, “[The duty of the] courts of justice…must be to declare all acts contrary to the manifest tenor of the Constitution void.” Their job is to take the Constitution, have that guide their decisions in regards to the cases. What is the manifest tenor of the constitution? What’s the feeling you have of the Constitution? What does the Constitution mean? Not just whatever they feel like, but Jefferson makes it very clear. QUOTE “On every question of construction, [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
The job of the Supreme Court isn’t to create new inventions and to squeeze meaning out of the text. It’s to understand the original intent. When the Constitution was made it was a compact between the states. Those words were written down and those words had meaning. What did they mean? The original intent is what the Constitution means. Not the most recent interpretation by the Supreme Court. That’s what they’re supposed to apply is the original intent of the Constitution, and not try to squeeze meaning out of the text and create, like they did in Roe V. Wade, create entire statutes out of the Constitution that aren’t even there. They just write them from the Constitution. They can’t write statutes.
Now, I’ve taken all that time to talk about the Judicial branch. We took a lot of time in our first presentation, Power in the Constitution, talking about the Legislative branch. Now we’re going to talk about the Executive Branch, but it’s not going to be nearly as long, just a couple of slides. Don’t worry.
SLIDE In Article II, Section 2 and 3 it pretty much summarizes all of the powers of the President. Besides what we talked about earlier in Article I, where the President can veto, these are the rest of the President’s powers. Talking about the Executive branch. “The president shall be Commander in Chief…Grant reprieves and pardons…Make treaties…Appoint ambassadors…Judges of the supreme court, and all other officers of the United States…Fill up all vacancies that may happen during the recess of the Senate…Give to Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient…On extraordinary occasions, Convene both houses…Receive ambassadors…take care that the laws be faithfully executed…”
These are all of the presidential powers. When you look at these they’re kind of administrative powers aren’t they? To receive ambassadors, ets. Those are administrative powers. Why would that be? Because he’s the chief administrator of the federal government. All of the external. Remember the federal government is in charge of all the external affairs, not the internal affairs? He’s more of a figurehead. Someone who gets involved that way. Today our president is just a tad bit more involved in our laws than the Constitutuion calls for isn’t he? Overstepping those bounds. It’s really interesting that when a new president is elected he fills 6000 federal physicians and hires 450 white house employees. Four hundred and fifty white house employees, hold on a second. You look at it and say it’s grown, it’s grown too big.
Where is his power to declare war, to make laws because Congress isn’t going fast enough, to be a world leader? Those powers aren’t there, they aren’t written in the Constitution. He may have assumed those powers and the people may have allowed that and condoned that behavior because of apathy and ignorance. Those powers aren’t there constitutionally.
Modern Day Abuses of Checks and Balances
QUOTE James Madison says this, “…In a representative republic (which we are)…the executive magistracy is carefully limited, both in the extent and the duration of its power.” They feared a king, they didn’t want a king, they already had enough of a king. They didn’t want a king to rule forever. They wanted to have a limitation on the extent of their power and the extent of their reign. Now we’re going to talk about in any organization, any group, any system, the greatest power that exists is the power to make laws, isn’t it?
SLIDE Article I, Section 1, Clause 1 addresses the ability to make law. We talked about this before. “All legislative powers herein granted shall be vested in a Congress of the United States…” The key word there is the first one. All. This is the very first word after the preamble of the Constitution. All legislative power is vested in Congress. How much law making power is left over for the Executive branch? Zero. How much is left over for the Judicial branch? Zero. All law making power is vested in Congress. It’s incredibly important to understand that. They’re the ones who make laws. If making laws is the most important power that there is in any system, in any government, any organization, the greatest abuse of power would be making laws you aren’t authorized to make. What we’re going to do is discuss modern day abuses of constitutional law making power.
Now a days its estimated that about 1/3 of laws are made by Congress, 1/3 of our laws are made by the President and 1/3 of our laws are made by the Supreme Court. Why? We have to look in the mirror, that’s us. We’ve allowed it, we’ve condoned that. It should be 100% of all laws are made by Congress because they represent us, they are accountable to us and we can pick and choose who we like. And what they’re doing and if they’re representing us well or not and put new people in there if not.
SLIDE There are three different ways to abuse this power. First of all laws that are made by the Executive branch. Secondly legislating from the bench, laws made by the Judicial. And thridly Congress making laws, but making laws that are outside of their enumerated powers. We’re going to explore each one of these, each one of the branches of government and how they abuse this law making power. We’re going to start with the Executive branch.
The executive orders. Everyone hears about executive orders and everyone gets mad about them because they’re so oppressive and they’re so wrong. I”m here to tell you, and this may frustrate you, but i’m here to tell you executive orders are definitely constitutional. They are constitutional. Article II, Section 3, Clause 1 says “[The President] shall take care that the laws be faithfully executed…” How can the President faithfully execute the laws if he has no power to do so? He can issue executive orders, but once again it’s a jurisdiction issue because the executive order doesn’t go out to everyone everywhere. The executive order goes to the Executive branch. He’s the chief executive of the federal government. He can issue executive orders for the executive department of the federal government to act, to faithfully carry out the laws of the union. Executive orders are all right. The problem obviously is when the executive order says, oh well this affects our whole nation or i’m going to write a law. The President can’t write a law. He can make an order for this executive department, but he can’t write a law.
Another interesting twist is something called the signing statement. Have you heard of the signing statement before? In a signing statement the President may express his opinion on the constitutionality of some provisions of a bill, such as those that intrude on as the executive power and declare that those provisions will not be enforced.
Wait a second. If a bill comes across the Presiden’t desk he has two options. He can sign it or he can veto it. He can’t sign it and cross out a few things and write a signing statement saying I don’t like these things but I’m going to go ahead and pass the rest of the bill. That’s not in his authority. Look at the different things that happen, and wait, you can’t do that. You can’t just make up powers that you think are good.
SLIDE The second thing of the Executive branch is administrative law. Here’s what happens in the Executive branch as well, administrative law. Article II, Section 2, Clause 2 “[The President] shall appoint…all other officers of the United States,…which shall be established by law…” Who establishes these positions? Law. Who is the law? Who makes the law? Congress. The President can appoint positions to offices that are created by Congress, but he can’t just create positions out of thin air. What does that say about the czars that we have? They’re not constitutiuonal are they? You can’t just create an office. That office has to be created by law and then you’re able to fill that, but Congress is in charge of creating, of writing law and they’re those who make these offices that can then be filled by the President.
It’s critical to understand the Executive department. Their role isn’t to write laws. Their law is to execute the laws that are written by Congress. James Madison said, “Ambition must be made to check ambition.” The natural postion of the person should be in correlation with the position in the government. There should be this natural jealousy to guard my power. If Congress has the power to make all laws why is Congress letting administrative law, letting agencies, letting the President, why is the Congress letting different people make laws? Why are they letting agencies make laws? Why is administrative law so dominant in our world today? Well, this could be a cynical way of looking at it, but we hire the congressional leaders, our representatives to make decisions that are hard decisions. That take a lot of work, a lot of stress, some people may not like them, etc. Wouldn’t it be easier to say why don’t we create an agency so that whenever a constituent tells us (I don’t like that, I don’t like what OSHA is doing, neither do I, bad OSHA group, I don’t think they’re doing a good job either.) And so the heat doesn’t come to them they can deflect it. (I really like what OSHA is doing, I like what OSHA is doing too, they are doing a fine job.) Then they never have to make those hard decisions and they can always pass the buck to the agency. When we don’t like what the agency does what can we do? Nothing. We can’t vote them out of office can we? What happens when we don’t agree with what our representative does? We can vote them out of office. They are accountable to us. Shifting that ability to make law and to make decisions to an agency is actually very destructive to our freedoms. It violates the principle of representation. Of accountability to your constituency. Kind of interesting. That’s why they do it, because they don’t have to face the music.
SLIDE That’s administrative law. Now let’s go to legislating from the bench. We’re not going to spend a lot of time on this because we’ve already I think kicked a dead horse here, but talking about the Judicial, Roe vs. Wade. Very simply if they make a wrong decision we don’t have to let that happen anymore in the future. There are constitutional remedies to make sure that we don’t just allow that to become the supreme law of the land because it’s not. Constitutionally it’s just an opinion. They can be limited, we’ve already talked about that in detail.
SLIDE Lastly, Congress legislating outside of its enumerated powers. Congress has the ability to make laws, don’t they? But they can’t make whatever law they want to. They can only make laws that they’ve been given the express authority to do so. To make laws in regards to that issue. The perfect example is the Patient Protection & Affordable Care Act (Obamacare). It’s commonly known as Obamacare so I’m going to call it Obamacare, just a shorter name for it. It’s a perfect example of how the checks and balances has broken down. We’re going to look at it in more detail. Before we get there let me show you an interesting slide.
SLIDE This picture is worth 1000 words. It shows us a schematic of Obamacare. Look at this. We have all these agencies that are created, etc. What happened to the states? The states stuck all their eggs in one basket. That basket was the individual mandate. Surely the Supreme Court won’t say that there’s constitutional authority to make people buy something, make people purchase a product. Thirty states put their eggs in this basket, yeah individual mandate. We’re going to put all our stock in that idea the Supreme Court won’t uphold that. The individual mandate goes away look at this picture. There it is. Do you see it? It disappeared, but it’s still there, isn’t it? Obamacare is still there and it’s interesting to note with Obamacare there are 150 new agencies that are created, 150 new agencies. There are still 16,000 new IRS agents. There are still home business to assess stress management effectiveness in the home. Home visits to assess school readyness. Home visits from the federal government to assess family economic self-sufficiency, academic achievement, parenting skills…Obamacare the government still decides who lives and who dies is rationing of care. A lot of people are saying, come on that won’t really happen. It’s happening today, in many socialist countries. Socialized medicine doesn’t work and so there has to be rationing of care. There are only so many resources and who is going to decide? The government is. You are past a certain age, nah you can wait in line and you die wainting in line.
Section 1553 mandates abortion, euthanasia, assisted suicide. All these things are there regardless if you have an individual mandate or not. Obamacare is socialied medicine. It’s socialied. It’s the first step to socialized medicine. Socialized medicine is charity. It’s not freedom.
SLIDE Let’s go back to how Obamacare really came to us. We’re talking here about Congress legislating outside its enumerated powers. How did it come to us? It came to us on the silver platter of Interstate Commerce Clause. Interstate Commerce Clause, Article I, Section 8, Clause 3 says this, “The Congress shall have Power to…regulate Commerce…among the several States…” we talked about this in a previous presentation. We’re going to discuss it a little bit more here. Because of the Interestate Commerce Clause Obamacare came to us. We can talk about a bunch of different quotes, etc., what we can really go to is a simple idea of regulate. It all revolves around the word of regulate. Historically the states were killing each other over disputes about commerce, duties, and tariffs they were putting on each other. The Founders said, no in our Constitution we’re going to give the power to the Congress. Make it a congressional authority so they are able to regulate, to make sure commerce continues to be regular and to keep happening. Not have it shut down and bog down because of the disputes between the states.
SLIDE Article I, Section 9, Clauses 5-6 gives a little more clarity into this. It says, “No tax or duty shall be laid on Articles exported from any State.” It also says, “…nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”
In the Constitution you can very clearly see the Interestate Commerce Clause is about the shipping, it’s abou the dock stuff, it’s about what happens in between the states, the shipping of products. I’m going to give you a little bit of a history lesson about how this came to pass, though. It’s kind of interesting. In 1935 there’s the case called Schechter vs. The United States. In this case the Supreme Court, back in 1935, issued a really good opinion. Here’s what their opinion was. “If the commerce clause were construed to reach all enterprise and transactions which could be said to have an indirect effect upon interstate commerce, the Federal authority then breaks practically all the activities of the people and the authority of the state over its domestic concerns that exist only at the sufferance of the federal government.” They were right on, weren’t they? That’s a good ruling. It’s saying you can’t have interstate commerce control everything, otherwise the states have to ask the federal government for permission to do whatever they want to do. That’s a good ruling. The problem is that the summary of that ruling was this.
SLIDE Interstate Commerce According to Schechter v. United States. Congress could regulate things that “directly affect” interstate commerce. What happens is you have a case precedent. From 1935 on courts look to Schechter and said does this directly affect interstate commerce? Instead of looking back to the Constitution, Article I, Section 8, Clause 3, and Article I, Section 9, Clauses 5-6 says look back to the case. Does this directly affect commerce? That’s the standard instead of the Constitution being the standard.
Fast forward to 1992 you get US v. Lopez. Kind of an interesting case. The young man brought a gun to school in Texas. There’s a Texas state law that says you can’t do that. He got prosecuted. The federal government came along and said, we’re going to prosecute you too. Lopez says for what, what are you talking about? Based on the Interestate Commerce Clause. He said Interstate Commerce Clause, what? They took him to court and appealed the decision all the way up to the Supreme Court. In this decision the federal government argued if kids are in school and they’re not sure that someone around them could have a gun and may feel unsafe and secure, they probably won’t perform as well or learn as well. They may not be able to pass tests as well and gain the skills necessary so when they graduate they become an integral and a helpful part of our interstate commerce. Believe it or not, that was too much for the Supreme Court. They said wait, you are plotting inference upon inference here. Even the Supreme Court said no, you’re way off here and they issued a good ruling. The problem was once again their ruling became a precedent. Their ruling became the law. The ruling said Congress could regulate economic activity that “substantially affects” interstate commerce.
You tell me, does Obamacare substantially affect interstate commerce? You bet! Now all of a sudden it’s constitutional because it’s brought to us by the Interstate Commerce Clause. It’s not the Interstate Commerce Clause they’re quoting, it’s the US vs. Lopez case that they’re quoting. You see how case precedent gets in the way. A perfect example of, hold on there a second, they’re legislating outside of their legislative authority. The Judicial branch is upholding it. QUOTE Chief Justice John Roberts, remember this Obamacare famous decision said, “Simply put, Congress may tax and spend.”
Can congress tax and spend? Yeah. But only for specific duties, specific enumerated powers. That’s what Jefferson said. QUOTE “Congress has not unimited powers to provide for the general welfare, but only those specifically enumerated.” They can’t tax and spend on whatever they want to. They can only tax and spend for those things that are enumerated. Is socializing medicine an enumerated power? No. Congress can’t do that then. They can’t tax and spend on socializing medicine. It doesn’t matter if the tax or a law or whatever it is, a mandate, what matters is Congress can’t socialize medicine.
What Can We Do When Checks and Balances Fail?
I’m going to give you an example and you say now wait a second,
SLIDE What, then, can we the people do Constitutionally when all three branches of the Federal government are ignoring their Constitutional duties and are avoiding their Constitutional responsibility to check and balance the abuse of powers of the other branches?
What can we do? Aren’t we stuck? We’re stuck, right? What can we do, all the branches are doing whatever they feel like doing, no one is checking each other, it’s completely out of control. Can you see how we wonder, what can we do? I think we just get mad, that’s all we can do. But you realize it’s because we’re stuck in this paradigm, the idea that checks and balances only happens at the federal level. What if the federal level isn’t working? What if the federal checks and balances aren’t occurring? We need to talk about the division of power now, don’t we?
SLIDE Some people say, what we need to do is put pressure on Congress to repeal or defund Obamacare. We’ve already done that right? We’ve already put that pressure. How did that work out? Did we repeal or defund Obamacare? No. What about, let’s trust the Supreme Court to overturn it. We already saw that didn’t work out. They consider it to be constitutional because it’s a tax, so whatever they want to reason there. Or hey, you know, what we need to do is elect a new President or new Congress from a different party, that’ll fix it. That won’t fix it, will it? Because both parties are supporting their own version of socialized medicine. Whether it be Obamacare or the new Republican version of socialized medicine.
If you put your trust and your stock in the federal government you’re going to be highly disappointed because those things aren’t working out how they need to. That’s not the only check and balance that we have. The most powerful check and balance that we have is what we’re going to talk about here.
QUOTE Jefferson puts it this way. [T]he several states composing the United States of America are not united on the principle of unlimited submission to their general government” It’s like we talked about at the very beginning of the presentation, it’s not oh we’ll just do whatever you tell us to do. That’s not why they came together. Jefferson goes on to say, “but…under the..Constitution for the United States…they constituted a general government for special purposes, [and] delegated to that government certain definite powers…”
They got together and said we’re going to have a central government and tell them certain things they can do and that’s it. Jefferson also said, QUOTE“This [Federal] government…was not made the exclusive or final judge of the extent of the power delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers.” That’s a really interesting concept, because wait a second. It’s a contract between the states and they form the Constitution. They form the federal government. The states, the federated states formed the federal government. Why would all of a sudden the federal government be the one to choose when they are acting properly or improperly. Whoa!! That doesn’t make any sense, because then the creature becomes greater than the creator and tells the creator what to do. You see how upside down we are if we think the federal government is our master? They’re not, they are our servant. We created them. They don’t tell us what to do. We tell them what to do. That’s what he’s saying in this quote. Continue quote, “Whensoever the general government assumes undelegated powers…a nullification of the act is the rightful remedy.”
Nullification isn’t sedition, it isn’t secession, it’s not anarchy, it’s not treason, it’s not picking and choosing which laws we will obey. Nullification is the constitutional remedy. It’s the Tenth Amendment remedy to say look, we gave you certain powers. We never gave you that power. If you choose to use that power and exercise that power that we never gave you we will ignore that in our state. We’re not going to do whatever you tell us to do. We only gave you certain powers when you act outside of that, nullify it. We’re not going to honor that unconstitutional law in our state, because we don’t consider the federal government to be supreme. We consider the Constitution to be supreme. It clearly states if the power is not given to you it’s not yours.
QUOTE Madison makes another excellent point. He says, “…in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the [Constitution], the states,…have the right, and are in duty bound, to interpose, for arresting the progress of the evil…”
It’s interesting. What he’s saying is your state legislators, when they take an oath of office, they take an oath to the US Constitution and to the state Constitution. Why would they take an oath to the US Constitution? Because they’re in duty bound to interpose themselves like he says in this quote. If the federal government tries to come and usurp and tyrranize our state they are in duty bound to interpose, to stand between the federal government and us and protect our rights. That’s their duty. It’s their duty to nullify unconstitutional laws. Everyone is scared of nullification. It’s a very simple concept. It’s not a crazy concept, it’s a constitutional concept. It’s a concept that says the constitution reigns supreme. Not the federal government.
Madison and Jefferson are well known for being conservative. The people’s people. Even back in the day amongst the Founders there were more conservaitve leaning, more progressive leaning. They are on the conservative end. They were all about people, all about small, small government. There are some other central government type people. The most famous one was Alexander Hamilton. Very much a central government type of guy. He kind of leaned that way. It would only be fair to see what was his opinion on this idea of nullification. This idea of the state standing up for their rights.
QUOTE Let’s see what he says. He says, “If [the states] enter into a larger political society [the United States], the laws which the [United States] may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those [states] and the individuals of whom they are composed.” That is simply restating the Supremeacy Clause. If we give them powers and they exercise those powers that are pursuant to the powers that are given they are supreme over the states and the people. But he continues and says, “…But it will not follow from this doctrine that acts of the [United States] which are not pursuant to its constitutional powers…will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”
Even our more progressive, Alexander Hamilton says whoa, whoa, whoa. Federal government can’t just do whatever they want to do. If they do something that wasn’t given them the power to do then it’s completely in the jurisdiction and rights and authority of the states to say, no. We nullify that. We don’t honor that.
Let me give you one quick example of how nullification works. What a nullification bill looks like. In 2011 in Wyoming there was an nullification bill to nullify Obamacare. Since we talked about Obamacare quite a bit here, we’ll show you one example. This obviously isn’t the meat of the bill, these are kind of just little highlights, but it points out what nullification is all about.
SLIDE Federal Health Care Nullification Act
Section 1: The legislature of the State of Wyoming finds that:
A. The people through the states created the Federal government and gave them certain enumerated powers
B. The 9th and 10th amendments define in whose hands the powers not specifically enumerated remain
C. The assumption of power by the federal government into healthcare interferes with the rights of the people of Wyoming to regulate health care as they see fit
It’s an intrusion on our right to self-govern. It’s our issue to deal with, it’s not the federal government’s issue to deal with.
SLIDE Section 2: New law
A. The legislature of Wyoming declares Obamacare null and void and of no effect in this State
B. Any official attempting to enfore an act, law, or rule in violation of this act will be guilty of a felony
If you come into our state and try to impose a federal law that is unconstitutional, you’ll be guilty of a felony. If you’re inside of our state, if you’re a state employee and try to implement a law that imposes this unconstitutional Obamacare, you will be guilty of a felony and be treated as such, because it’s violating the constitution. We in Wyoming uphold the Constitution. We will not allow this to happen. Did this nullification act make it through? Unfortunately, no. There were too many people who were scared of nullification and said, oh we can’t do that, that’s crazy. We can’t just pick and choose. In fact a prominent leader in our state said we can’t just pick and choose which laws we’re going to follow. Actually, we can and we will. We will pick and choose, we will choose to follow only constitutional laws, and we will choose to not follow any unconstitutional laws. We’re not just going to do it haphazardly, we’re going to create an actual nullification bill that states that. It puts us on the grounds that the Constitution is the supreme law of the land.
There you have it. Checks and balances in the Constitution. We start to really look at it, really kind of interesting. We realize, we have some challenges, but the challenge isn’t the Constitution. It’s not. It’s not up to the task. The challenge is the people who don’t understand the Constitution. The power of what’s in the checks and balances that offers us freedom. Freedom is a great thing. It’s there, it’s just ours to grab and ours to go after. When we understand those checks and balances that put them in the proper working order that’s when we get the freedom from our Constitution.