OPINION – The passing of Supreme Court Justice Antonin Scalia has just ensured that an already contentious general election year becomes even more intense.
Lovers of liberty are mourning the loss of one of the last strict constructionist justices in American history. Scalia regarded the Constitution as a binding legal contract that defined and enumerated the upper limits of power for the national government it called into existence.
Statists, on the other hand, are salivating at the prospect of a more activist appointment to replace Scalia. They’re counting on someone who will rule by social fad rather than the actual text and original intent of the document.
Existing divisions will likely become deeper as the appointment of a new justice plays out.
What many on both sides are missing, is the necessary historical context to understand how our government has devolved to where a simple majority of nine lawyers can impose their demands on society.
The federal system that was created by the founders and ratified by the states no longer exists in America.
The destruction of the enumerated, separated and balanced powers of the Constitution has taken many generations to realize. It started much earlier than most people think.
When the Constitution was first ratified, it was the states that balanced the power of the new national government.
James Madison used the term “national” to describe the powers of an independent central government and the term “federal” to refer to those powers that came from the contributions of the states.
This means that the national government was dependent upon the states and not the other way around. For instance, U.S. senators were appointed or elected by state legislatures up until 1913 and the 17th Amendment.
Their allegiance was to the states they represented and not to Washington.
With the states controlling half of the national legislature, it was up to the states to decide if they would implement national policies. That included determining whether a law passed by Congress was constitutional or not.
The national government was duty-bound to follow the states rather than dictate to them.
Thomas Jefferson explained the reasoning behind this structure:
The capital and leading object of the Constitution was to leave with the States all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other States; to make us several (separate) as to ourselves, but one as to all others.
The oft-misquoted supremacy clause clearly states that its supremacy only applies in pursuance of those Constitutional powers enumerated for the branches of national government. It’s not a blank check for national authority.
What Jefferson feared most was the consolidation of powers to the national government followed by the inevitable consequence of corruption. This is why the distribution of powers was so essential to good government.
By consolidating power to a centralized national government, the power of the individual states could be stolen and used to bypass the limitations of the Constitution.
The Marbury vs. Madison case is where this first major shift of consolidating power away from the states occurred. It’s one reason why the Supreme Court still exercises power it was never intended to have to this day.
In a nutshell, consolidationists had pushed for John Adams to make many lame duck appointments following the election of 1800. The five-year appointments were intended to allow them to stay in control through the next election.
Not all the appointments could be made before Jefferson took office and, when William Marbury’s appointment was withdrawn, he went to the Supreme Court demanding that he be appointed to his office.
The justices of the court, led by John Marshall, ruled that they understood the Constitution better than the man who actually wrote it. They gave themselves the power of judicial review in which one branch of the national government provides a check on the other branches of that government.
Remember, the states which called a federal government into existence through a compact we know as the U.S. Constitution were now told that one part of their creation – the Supreme Court – alone would decide what was and wasn’t constitutional.
The states could no longer act as a check on the national government.
The rule established by the Marshall court took precedence over liberty. Liberty had been the primary goal behind the founding of the republic but now it was subserviant to the rules.
The 14th Amendment, imposed in the reconstruction era following the War between the States, codified the alleged moral superiority of the national government by declaring that the Bill of Rights applied to everyone no matter what state governments were doing.
By the time the 17th Amendment was ratified and state legislatures were no longer able to appoint or elect U.S. senators, the states effectively became little more than administrative offices of an all-powerful national government.
If you cannot see how this shift in power has fed the abuses and overreach of our unfettered national government today, you’re simply not paying attention.
The system is unlikely to fix itself. Keep that in mind as candidates vie for control of the Washington beast.
The answer to the tyranny of consolidation is found in decentralization.
That will require serious moral courage on the parts of the states and their people.
The only other options are to continue accepting official abuse as our lot in life or to distract ourselves into a state of deliberate blindness so as to avoid the responsibility of seeing what has happened.
We all have choices to make. Few of them are easy ones.
It helps to understand exactly what we have lost so far.
Bryan Hyde is a news commentator, radio host and opinion columnist in Southern Utah. The opinions stated in this article are his and not representative of St. George News.
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