by Geoff Broughton
Today, public opinion is on our side. According to a Rasmussen Reports 59% of voters believe the States should be able to ‘opt out’ of Federal Programs it does not agree with. Compared to 47% who agreed when asked about National Health care in December. The number jumps to 63% when asked about opting out of Federally unfunded mandates.
That is a trend in which I predict will give rise to much more attention from the opposition. In the few articles and blogs which have surfaced so far, those who are opposed to a truly federal System as laid out by the founding fathers in our constitution, have called upon ‘constitutional experts’ to put down such silly talk of State Sovereignty, and the notion that the Tenth Amendment has any real bearing on today’s political landscape.
One op-ed that comes to mind was from the LA Times titled Constitutional objections to Obamacare don’t hold up, back in January. Akhil Reed Amar begins his editorial by listing his credentials.
I’m no healthcare expert, but I have spent the last three decades studying the Constitution, and the current plan easily passes constitutional muster.
Now I am not here to argue with Mr Amar, in fact Rob Natelson already took on each of his points here. My goal is to debunk the term, ‘Constitutional expert’ and have a little fun with Mr Amar’s credentials. Lets see, 3 decades is 30 years which breaks down to 10,957(365 days times 30 plus seven for leap years). A quick google search and I got that the entire Constitution plus amendments including the signature page is 8,114, or 8060 with out the signatures. Which means he could have spent one day on each word and still had 2,897 days to do other things, perhaps the Declaration of Independence which is 1,457 words long. I can only imagine the excitement in day one where they did an indepth study on the word: “We”.
Of course, I am being silly, but so is the idea of a ‘Constitutional Expert’. Even with the formal language and preamble’s, the document is not all that complicated. What Mr Amar has no doubt studied for the last 30 years is a ‘case law’ look at Supreme Court decisions, and how those decisions have radically redefined what was originally written by our founders.
We know that our founders studied the works of Blackstone, John Locke, Montesquieu, and Cicero and very much believed in Natural Law. The Declaration and Constitution are filled with Natural Law precepts like unalienable rights and separation of powers. Up until the early 1900′s the prevailing theory in jurisprudence was something known as Legal Formalism
From Wikipedia Search of Legal Formalism:
Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts, suggesting that investing the judiciary with the power to say what the law shouldbe, rather than confining them to expositing what the law does say, violates the separation of powers.(emphasis added)
At this time, a theory called Legal Realism began to become popular, most often connected with Oliver Wendell Holmes. But more important to our history is a man named Roscoe Pound who believed in something called Social Jurisprudence.
From Wikipedia Search of Legal Realism:
Legal realists advance two general claims: 1) Law is indeterminate and judges, accordingly, must and do often draw on extralegal considerations to resolve the disputes before them. 2) The best answer to the question “What is (the) law?” is “Whatever judges or other relevant officials do“.(emphasis added)
Why is knowing who Roscoe Pound is so important ?
From Wikipedia Search of Roscoe Pound:
In 1910 Pound became professor of law at Harvard. He was dean from 1916 to 1936 during what was called Harvard Law School’s “golden age”. He helped shape a faculty and program of legal education equipped to implement his concept of sociological jurisprudence. A large number of the law school graduates were active in formulating policies of Franklin D. Roosevelt’s New Deal, and Pound supported many of its early measures.
This is an important point. Either the law is what it says, or it is what a judge or other official says it is. These two ideas cannot be comingled can they? Our method of selecting Supreme Court Justices makes predicting the outcome of any particular case difficult.
From a Wikipedia search of the Supreme Court:
There are a number of ways that commentators and Justices of the Supreme Court have defined the Court’s role, and its jurisprudential method:
Current Associate Justices Antonin Scalia and Clarence Thomas are originalists; originalism is a family of similar theories that hold that the Constitution has a fixed meaning from an authority contemporaneous with the ratification, and that it should be construed in light of that authority. Unless there is a historic and/or extremely pressing reason to interpret the Constitution differently, originalists vote as they think the Constitution as it was written in the late 18th Century would dictate.
Associate Justice Felix Frankfurter was a leading proponent of so-called judicial restraint, in that he believed that the Supreme Court should not make law (which, by invalidating or significantly altering the meaning of Congressional bills, Frankfurter felt they were), and so believers in this idea often vote not to grant cases the writ of certiorari. Associate Justice Stephen Breyergenerally advocates a quasi-purposivist approach, focusing on what the law was supposed to achieve rather than what it actually says, and measuring the possible outcomes of voting one way or another.
Other Justices have taken a more instrumentalist approach (see judicial activism), believing it is the role of the Supreme Court to reflect societal changes. They often see the Constitution as a living, changing and adaptable document; thus their ruling will be in stark contrast to originalists. Compare, for example, the differing opinions of Justices Scalia and Ruth Bader Ginsburg, who is a more instrumentalist justice.
Finally, there are some Justices who do not have a clear judicial philosophy, and so decide cases purely on each one’s individual merits.
So this is why any so called expert on one side of an argument can be countered with another and why I tend to reject it altogether. Since your study of this system is bound to be prejudiced by your philosophy of law, since Constitutional law is really Case Law.
From a Wikipedia Search of Case Law:
Which is the reported decisions of selected appellate and other courts (called courts of first impression) which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis. These interpretations are distinguished from statutory law which are the statutes and codes enacted by legislative bodies; regulatory law which are regulations established by governmental agencies based on statutes; and in some states, common law which are the generally accepted laws carried to the United States from England.
Our opponents will often be from the judicial activism approach. But there is not a mythical high priests understanding here, no matter what the experts say. You either believe in the Constitution as written, or you believe in the Constitution as what your masters think it means today. For me it is like choosing between Orwell’s 1984 vs or Jefferson’s writing of the Declaration of Independence in 1776.
I want you to google 1942 Wickard v. Filburn. In a Wikipedia search on that case you find,
The Supreme Court, interpreting the United States Constitution‘s Commerce Clause (which permits the United States Congressto “regulate Commerce . . . among the several States”) decided that, because Filburn’s wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn’s production of more wheat than he was allotted was affecting interstate commerce, and so could be regulated by the federal government.
There is no way you can read the interstate commerce clause found in Article One Section 8 which reads, ”To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, and come to the conclusion reached by the Supreme Court in 1942. For the Courts to decide the Federal Government could control the output of a private citizen on his own property for his own use is an abomination of the Constitution and the system of Liberty it is supposed to protect. Conservapedia goes into much more detail if you want to read more.
If you agree with me that Natural Law should be what governs a free society, then the question you have to ask yourself is: How long will you be satisfied asking the Federal Government to limit its own powers, before you accept that the answer that an inconsistent court or legislators like Pelosi or Conyers have made clear.
CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”
Pelosi: “Are you serious? Are you serious?”
John Conyers on Congress reading the Bills?
John Conyers: “I love these members, they get up and say, ‘Read the bill’. What good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you read the bill?”
Quotes Supporting State Sovereignty:
Alexander Hamilton:
- “It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”
- “We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.”
James Madison:
- “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.”
- “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
- “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.”
Justice Scalia:
- “This separation of the two spheres is one of the constitution’s structural protections of liberty. Just as the separation and independence of the coordinate branches of the federal government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”
- “…the Constitution’s conferral upon Congress of not all governmental powers, but only discreet, enumerated ones.”
- “It is incontestable that the Constitution established a system of dual sovereignty”
Geoff Broughton [send him email] is the State Chapter Coordinator for the Colorado Tenth Amendment Center
Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given
If you enjoyed this post:
Click Here to Get the Free Tenth Amendment Center Newsletter,
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Subscribe to entries
Subscribe to comments
All content © 2010 by Tenth Amendment Center
Another Great Article!
I'm a lawyer and studied under the 'case law' method at a major law school. I was good at it and graduated 2nd in my class. I worked in the federal judiciary as the 'senior law clerk' for the Chief Judge of a federal court. I studied the Constitution in my spare time because the reality of 'Con Law' is that you never read the Constitution – you read thousands of opinions from other judges interpreting the Constitution.
I used to say that if you couldn't find at least one opinion that supported whatever position you wanted to take, you hadn't completed your research. Trust me, the legal system is not about 'finding the law' as writ. It's about taking a position and then finding CASES to support that position.
Wickard is the poster child for what's wrong with the judiciary. What a joke! Much like those who espouse a 'living Constitution.' Again, what a joke!
I have been ridiculed by other lawyers, judges, law professors, legislators, law clerks, etc. for my 'simplistic' view that the Constitution means just what is says; no more and no less and that we MUST be bound by it if we want to be a 'nation of laws.'
People have violently opposed my views on emotionally-charged issues such as Lincoln and state sovereignty.
But, it helps to remember the quote from the German philosopher, Arthur Schopenhauer (which I have posted on my wall):
"All truth passes through 3 stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident."
I'm still waiting for step 3!!
Yes, Guest (atty). Me, too. You describe the legal system fairly well.
As to the claim that the federal government has exceeded its authority and the whole system in general is back-@sswards, you'll get no argument from me. I totally agree.
Further, much weight appears to be given to the assumption that the issue of "state vs. federal" is even a genuine debate over authority. I am one who thinks the debate is not genuine and that the Constitution means nothing to people with lots of money and influence who think it is just a piece of parchment that gets in the way of their goals.
As to the main thrust of the movement, time will tell whether people realize that there are vested money interests in ignoring the Constitution.
In closing, the reason you studied cases in Con-Law and not so much the Constitution, itself, is because these cases are the law. If you want to play the lawyer game from within an establishment system, you need to work it like an insider – that means case law. The Constitution does not matter in that arena. There are other interests at stake, and that's why gray areas are invented – to serve those interests.
Jeff
You are right and that's why I eventually quit the law.
While I agree with you, it's sad and it portends ill for this country and my kids.
In the end, 'might makes right' and, today, might = money = power. It's always been that way and that's why the IDEAS behind the Constitution are so special to me.
On the flip side, there is a "realistic" approach to practicing law. This Tenth movement is fabulous, and I stand behind it.
However, I am a realist. Moneyed interests never give up their power voluntarily. If anyone thinks voting will solve the problem, then my response is "hope springs eternal." I honestly don't see that happening.
I like the ideals that came from our nation's founding. I am critical of the notion put forth that a "document" will ever keep people in check. As you say, "might = money = power." There is no document in history that has ever stood the test of time, and the Constitution is not going to be one of them.
About the only thing I see as truly relevant in the Constitution is the right to bear arms. Not that this right has not been abridged. Nobody gets to build nukes in their garage, and for good reason. But the relevant part is not that it was written on parchment, but that it was a public consent to the idea that the people may overthrow any government….. if they can.
As was stated in Texas vs. White (1869), this remains the law, but unsuccessful rebellions still remain illegal. Like we needed a court to tell us that. Duh!
Anyway, you are right in noting that "it's always been that way." To finish your thought, it will always be that way. It is the nature of humans.
Is it negative? Maybe, but that depends on how you want to view life. If I thought the Constitution was the chief modality for my existence, I'd be pretty dang depressed. Fortunately, it is not. And once people are sick and diseased and in the streets begging, then, a real, progressive and populism might spring up.
Right now, people are vocal, but comfortably sipping beer and watching Survivor Tahiti. As long as they are that comfortable, life ain't so bad.
There are things to do and money to be made.
I have never seen any document in history stand firm against any successful revolution. That's what I think of paper. I think in terms of people and social stability, foremost, and documents are secondary. Documents are worthless to the extent the people don't care to follow them. Obviously, the Constitution has traveled a long way down that path. So, what is its value in terms of today vs. 200 years ago? Not much.
Any movement capable of genuinely restoring original intent is a movement strong enough to just start from scratch and write on a new piece of parchment. In other words, the hands of time only move clockwise, and I doubt we're ever turning back.
Forge on….
Jeff
The value of the Constitution is, at least, that it shows us an historically accurate view of what the original scheme was so those of us who can read can clearly see how far off track the current system has become.
This gives us some perspective and an opportunity to rally others to that view. Without the written, unchanging document itself, it would just be oral history and it would be unreliable and not credible. Further, it gives us the benefit of the thoughts of people who were VERY smart and who had suffered through a crisis and prevailed. As you say, life it too easy today to get that view.
The written word is arguably mankind's greatest invention. It's not the paper that matters, as I'm sure you're aware, it's the IDEAS memorialized on the paper that matter.
We could start over and re-invent a system of government or we could push hard to move this one back in the direction of its original design.
Your option seems to be to wait until 'the people' are sick and diseased and begging in the streets and then try to put it all back together as was done in Germany in the late 1920's. I'd rather try to save the current system than risk another Hitler.
The reason why the constitution is ignored and case law is upheld is because the people in power like having the power to create things themselves. Reading the constitution as is would mean that their judicial oligarchy will be destroyed and their power to create law will be destroyed and all oligarchies protects its own self just as any democratic oligarcy would. The judicial oligarchy does not want their power restrained just like anything else in government.
The best argument that I can make is that a constituion was written by the people through the democratic process so if a legislature or a judge ignores it then they are violating the will of the people themselves since the constitution is just written instructions of how the constitution should behave.
[...] this article: Myth Busting: the 'Constitutional Expert' | Tenth Amendment Center Share and [...]
[...] http://www.tenthamendmentcenter.com/2010/02/23/myth-busting-the-constitutional-expert/ Easy AdSense by Unreal Bookmark It Hide Sites [...]
The trick to getting nullification, interposition, and the dreaded S word (secession) viable is to make a case for both conservative and 'liberal' political views. Conservatives can opt out of any federal gay marriage mandates while liberals can opt out of any anti-drug laws. Once you get both sides to realize how powerful this can be for their cause the laviathon will come down.
[...] post: Myth Busting: the 'Constitutional Expert' | Tenth Amendment Center Share and [...]
…constitution is just written instructions of how people in power should behave.
Regarding constitutional “experts,” don’t tell anybody, but here’s Thomas Jefferson’s “secret formula” for interpreting the Constitution.
“Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense.” –Thomas Jefferson to William Johnson, 1823. ME 15:450
“Common sense [is] the foundation of all authorities, of the laws themselves, and of their construction.” –Thomas Jefferson: Batture at New Orleans, 1812. ME 18:92
The problem is that Jefferson had evidently overlooked the following by Voltaire.
“Common sense is not so common.” –Voltaire, French author, humanist, rationalist, & satirist (1694 – 1778)
[...] Amendment Center – Myth Busting: the ‘Constitutional Expert’ Share and [...]
“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.” -Alexander Hamilton, The Federalist No. 28
http://www.constitution.org/fed/federa28.htm
Our State's have for far too long failed to uphold their most important duty of protecting our liberty from the encroachment of the Federal Government.
Its time to either demand they do their job and protect our rights from this Federal usurpation or replace them. This is the signal issue upon which my vote will rest, as there can be no more critical issue then our liberty.
The problem that I have with Hamilton and his concern about national authority invading public liberty is the following. He was one of the first federal officials to twist constitutional clauses so that Congress could exercise powers that the Founding States had specifically decided not to give Congress. Hamilton's illegal national bank is a glaring example.
I agree Hamilton was a lier and a hypocrite, but that is nonetheless not relevant.
The specific mention in The Federalist No. 28 which was published before the Constitution's ratification in "selling it" to the people and State of New York is relevant.
It is relevant as it tells us of the actual powers the people and their State actually agreed to ceded to the Federal government with the United States Constitution.
The rewriting and twisting of the same constitution by the power welders senses constitutes a breach or abuse of contract.
This is not just any kind of contract this is a contract of employment, in which the employer reserves the implicit right to revoke, as both described and demonstrated in the Deceleration of independents 1776.
So while I agree that Alexander Hamilton was a lier and a fraud for the most part, that is really not the point here.
the key to viewing the Federalist papers is that this was the way it was "sold" to the people, not really the authors personal views. So to understand the Constitution as the people who voted to ratify it viewed it, look at the Federalist papers. Hamilton was in favor of a monarchy, but he sold the constitution as a Federal Sysytem, that is what was ratified, and that is the lawful system.
This was an excellent article. Thank you for writing it.
Jeff Matthews, as the attorney guest mentioned, it is the ideas that count; the tea party movements are proof that those ideas, written on that piece of paper, still have power.
The problem is, though, those ideas are like a sword – they can't do anything by themselves, someone has to use them.
As you and others have mentioned, we have the modern version of bread and circuses in the form of beer (and pizza) and television that keeps people delightfully ignorant of what's going on around them.
Talk to 20 people, and see how many either refuse to talk about politics ("friends don't talk about politics and religion" is one I've heard several times) or claim that it's too difficult for them to understand and get involved in.
It no, sadly, no longer surprises me to hear people on the news or when I'm out and about, that have little or no understanding of the Constitution, and actually believe that federal government is empowered by the Constitution to do whatever it deems necessary.
What's truly disturbing is hearing the subject of Constitutionality, in the few times that it is brought up, being referred to derisively in the media, and many people seem to hold the same attitude about it.
Despite things like Tom Brokaw's little stunt with George Bush's military history, or John Gibson claiming that Ron Paul said that the 9/11 attacks were our fault and that he's a "truther", then playing clips of what Ron Paul actually said, where he never once blames us for it and plainly says that he does not espouse "truther" theories, people don't seem to have gotten the point that the raw output from the media can't be trusted.
Likewise, people claim that they can't stand name calling and personal attacks in and by the media, yet, when tea party activists are labeled as screw-balls and racists and called "tea baggers", people seem to really believe that anybody associated with the movement are a bunch of screw-balls and racists.
That needs to be changed, or worked around, to start changing public opinion.
Monoprise – When the selection of senators was taken from the state legislators and put up to popular vote in the name of "democracy", that removed the states' ability to defend themselves and their rights at the federal level.
[...] Myth Busting: the “Constitutional Expert“ [...]
the constitution unfortunately was inept in dealing with the money power, donating only 3 sentences to the money power and it's MONEY CREATION POWER; and its since delegation of said authority to private institutions privately owned and profited on, the LEGALIZATION OF SLAVERY. LOOK into the state bank on North Dakota, Ellen Brown's work for Restoration of Money Power Rights to PEOPLE. Though she stops short of recognizing the illegitimacy of the current system.
[...] Myth Busting: the ‘Constitutional Expert’ [...]
[...] of my favorites: Myth Busting: the ‘Constitutional Expert’. A must [...]
[...] Myth Busting: the ‘Constitutional Expert’. Anyone can be an expert on the constitution. Don’t let liberal professors tell you it takes a PhD. The only thing that takes a PhD is figuring out ways to obfuscate and twist the meaning of the document itself, defame our founders by re-writing American history, and entering the echo chamber of the progressive propaganda machine. In the end, it only insults our intelligence, because we are smarter than that, smarter than they are, and getting smarter by the day. You are reading the material, right? [...]