October 29, 2014 – Imagine for a moment you just hunkered down to watch the big Monday Night Football game between your favorite team and its most hated rival. Adorned in your “lucky” jersey, you’ve got a big bowl of popcorn in your lap and your favorite beverage next to you.
But when you notice the refs run out onto the field wearing striped shirts emblazoned with your hated rival’s logo, you jump up, spill your drink and spit popcorn right out of your mouth. You completely lose it and let loose with a stream of four-letter obscenities when you realize one of the refs actually plays for the opponent, and a second official serves as an assistant coach for that team.
Of course, nobody would blame you for your reaction. No sane person would accept the legitimacy of football referees clearly connected with one of the competing teams. Those guys could swear objectivity and promise fairness, but nobody would believe it for a second. We all know where their loyalties ultimately lie.
And yet millions of Americans accept this very scenario when it comes to their own system of government.
Ask virtually any American, “Who determines the constitutional limits of the federal government?” and they will tell you, “Why the Supreme Court does, of course.”
Consider what this actually means.
We put our faith in the Supreme Court (part of the federal government), made up of nine justices paid by the federal government, appointed by the president (part of the federal government) and approved by the Senate (part of the federal government) to fairly judge and properly limit the powers of the federal government.
Americans insisting on Supreme Court supremacy essentially argue that a founding generation fought a long bloody war to separate itself from an overbearing centralized power. They went to great pains to draft and ratify a Constitution that only delegated limited enumerated powers to the new general government, leaving most authority with the states and the people.
They insisted on an amendment (the 10th) to make this structure explicit. And then they gave nine politically appointed lawyers absolute authority to determine the extent of those limited powers.
This fails the logic test.
A limited institution that defines the extent of its own limitations cannot exist.
Common sense dictates that the definition of “limited” will constantly expand to accommodate the institution’s agenda. The power to decide makes the federal government’s authority essentially unlimited. And to borrow a quote from Madison, that “would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
Thomas Jefferson pointed out the absurdity of this notion in 1798, declaring that “the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government.”
He went on to assert that people of the states, who created the federal government in the first place, retain the right decide, in the last resort, the extent of the powers they delegated.
“The government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”
James Madison draws the only logical conclusion based on this fact.
“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
Simply put, the federal government was never intended to define its own limits. The states were always meant to serve as a check on federal power.
Madison gave us the blueprint in Federalist 46, asserting that when the federal government commits an unwarrantable act, “the means of opposition to it are powerful and at hand.”
We call this process, nullification.