One of the greatest deterrents to adopting a reapportionment scheme at the State level in opposition to Supreme Court’s unconstitutional and illegal decision mandating that State Legislatures be constituted on a population basis only, is the belief of most attorneys that there is no Constitutional check on decisions of the Court. Although in law school the attorneys were taught that this was the case, the truth is that the 10th Amendment, one of the “Bill of Rights”, was included as one of our fundamental Rights to address any overstepping of Constitutional powers by any part of the Federal government, be it coming from the executive, legislative or judicial branch.
I proposed that we remedy the SCOTUS decision by amending our State Constitution and then enact laws to realize our rights under both the US and State Constitutions. I then ask for comments. A prominent attorney responded. He liked the idea, but expressed grave doubts about whether it could be done … the letter that I wrote back to him is below. It should be instructive to understanding what could be done…
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Dear Sir:
I appreciate your response to my invitation.
The salient point in the Reynolds v. Sims decision that destroyed republican government in our State is the dissent by Justice John Marshall Harlan II. The decision by the majority is a perfect example of modern justices finding “hidden meaning” in the Constitution. Justice Harlan points out in the most emphatic manner how very wrong this decision is and I encourage that you read it.
In the first place we should review the antecedents of our republic. Jefferson referred to “unalienable” Rights in the Declaration of Independence without being specific — he also goes into great detail (which most of us did not read) about the justifications for the revolution, among which are “Swarms of Officers to harass our People, and to eat out our Substance,” the imposition of unelected judges and the tinkering with the Legislatures and legislators as being among the most egregious causes, the very things that the Federal government of today is doing to the States.
Madison was probably the one most responsible for the Constitutional Convention. He originally seemed to favor a pure democracy, although he did not speak for democracy. I believe that he, like other founders, was well aware of the short comings of past democracies, such as their susceptibility to demagoguery and their tendency toward the “tyranny of the majority,” – their unfairness to minorities. When the delegates from the small states pointed out their misgivings and concerns, he came to enthusiastically support the ideals of our Republic. When he returned to Virginia and presented the work of the Convention to Patrick Henry, Henry was appalled. Henry told him, “you have given us a tyranny greater than that which we have just defeated.” Madison’s position was that the Federal government was only empowered to that which Article I Section 8 mandated and therefore its power was very limited. Henry, correctly as it turns out, disagreed, opining that people in power tend to reach for more power. Henry insisted that the Constitution contain a “Bill of Rights” that ostensibly contained many more of Jefferson’s “unalienable” Rights. Henry and others fought for the “Bill” as the “Anti-Federalists” and finally, reluctantly ratified it after Madison promised to pass the “Bill” in the first Congress. It was an interesting epiphany for me to realize that the “Bill of Rights” is not a grant to us by government, but a legal block to the new Federal government’s meddling with our pre-existing “unalienable” God given Rights. Do you honestly believe that we would today have the right to bear arms if the Federal government had not been restrained? Patrick Henry’s contribution to the “Bill of Rights” was the Tenth Amendment – when the Federal Government oversteps, the states or the people are Constitutionally given the ability to set it right.
The Constitution is amendable, but the enemies of the Republic, most prominently the born again socialists, the statist Progressives, find the process far too cumbersome, uncertain and slow. So the Progressives have found a new way to destroy our republican government. The most vulnerable chink in the Federal Constitution is the judiciary. If you can seat just five of the nine justices as acolytes of Statism and get them to find new, unwritten meaning in the text of the document, and then convince the People that their decisions are inviolable, then you can subvert the whole document. And that is exactly what has happened. I know of no check or balance on the decisions of the Supreme Court written into the Constitution other than impeachment, salaries and the Tenth Amendment. But there are great impediments to any of these remedies. One of the most vexing to me is the people that should be policing this system, the attorneys, have been taught in law school and believe that a decision by the Supreme Court is final. Both Madison and Jefferson disagreed with this. They ardently fought the Alien and Sedition laws promulgated by the Adams administration in the States of Kentucky and Virginia by threatening nullification. (and won when the laws were repealed) Their argument boils down to this – when the Federal government enacts a law or regulation or hands down a decision based upon a power not delegated in the Constitution, it is no law at all and has no effect.
Can Federal laws, regulations, rules, edicts and such be nullified? Certainly! Had the Adams administration not backed down, Madison and Jefferson would have prevailed. Their fight most certainly helped propel Jefferson into the White House. The northern state’s nullification of the fugitive slave laws and the Supreme Court’s Dred Scott decision certainly were a factors in the beginning of the Civil War. In modern times, states are nullifying Federal marijuana laws and have killed national ID cards. But that is not the problem – the problem is the concept of the “living Constitution”, that is the Federal court system pulling “hidden meaning” out of thin air and then upholding the illegal laws that result from their chicanery. The most horrible of these decisions, and one of the first, was the unopposed incredible decision in Wickard v. Filburn that has given the Federal government carte blanche jurisdiction over all law, directly contradicting the intent and reason for the US Constitution.
But the decision that vexes us here is the continuing use of the 14th Amendment to perpetually interject sweeping new, but illegal law into the American experiment. When the Supreme Court ruled in Reynolds v. Sims, they totally ignored Article IV Section 4 of the Constitution which guarantees the States Republican government and the well documented meanings of the clauses in the 14th Amendment during the Congressional debates for adoption as Justice Harlan so eloquently points out in his dissent. The 14th Amendment was sold to the States as the instrument of enfranchisement for the former Negro slaves. It would take a quantum leap in credulity to believe that that States would have ratified the amendment if they knew that it also meant that single Federal judges could reapportion state legislatures. Nowhere in the Constitution is it written that the Federal government has that power. Yes, the states not only have the power, but the patriotic duty to nullify actions such as these, that is if we want to keep our Republic.
I hope that this at least piques your interest in what I am doing and should you agree, I would very much entertain any help that you might give me.
Sincerely,
Lee