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by Bob Greenslade
When Americans hear the term separation of power, they usually think back to their high school civics teacher discussing the separation of power between the 3 branches of the federal government. There is another separation of power that, in my opinion, holds the key to understanding the Constitution for the United States because within this separation of power is the original grant of power that created and empowered the federal government. This separation of power is the separation or division of power between the individual States and their federal government.
Unfortunately, this separation of power has been trampled and ignored. If there is any hope of restoring and preserving the federal system of government established by the Founders, then resurrecting and enforcing this separation of power must be the primary focus of the people of these United States and their individual state governments.
The Federal [Constitutional] Convention
In order to understand this issue, it is necessary to review some excerpts from the debates in the Federal Convention.
The delegates to the Convention were scheduled to meet in Philadelphia on May 14, 1787, for the purpose of รขโฌลrevising the federal system of Governmentรขโฌย that had been established by the Articles of Confederation.
On May 29, 1787, Edmund Randolph, Governor of Virginia, gave a long and detailed speech in which he enumerated the defects in the Articles of Confederation. He concluded his remarks by introducing a set of fifteen resolutions that he hoped the Convention would adopt as the รขโฌลleading principles whereon to form a new government.รขโฌย These resolutions, which were written by James Madison, are known as the Virginia Plan.
The following day, during a discussion on his resolutions, Randolph รขโฌลcandidly confessed that they were not for a federal governmentรยพhe meant a strong consolidated union, in which the idea of states should be nearly annihilated.รขโฌย
On June 19, 1787, nineteen resolutions, which originated from the Virginia Plan, were reported to the Convention. The first of these stated: รขโฌลResolved, that it is the opinion of this Committee that a national government ought to be established, consisting of a Supreme Legislative, Judiciary and Executive.รขโฌย
During the debates the next day, Oliver Ellsworth of Connecticut made a motion to expunge the word รขโฌลnationalรขโฌย from the above resolution and retain the proper title of รขโฌลGovernment of the United States.รขโฌย This proposal passed in the affirmative.
On June 30, 1787, Gunning Bedford of Delaware asserted that the รขโฌลsmall States never can agree to the Virginia Plan.รขโฌย He urged the Convention to รขโฌลdo what is in our powerรยพ amend and enlarge the confederation, but not alter the federal system.รขโฌย
The delegates, after heated debate, which nearly resulted in a dissolution of the Convention, did exactly what Mr. Bedford suggested. The word รขโฌลnationalรขโฌย was removed from all the resolutions and the proposed constitution, in its final form, simply revised and expanded the federal system of government established by the Articles of Confederation.[1]
On August 6, 1787, the Convention agreed that the name of the government being formed would remainรขโฌโรขโฌลThe United States of America.รขโฌย
As shown above, the plan to dissolve the federal system of government established by the Articles of Confederation and consolidate the States and their people into a single nation FAILED. By rejecting the Virginia Plan and the attempt to vest general power in a national government, the States ensured that a separation or division of power between the States and their federal government would be maintained.
The only question isรขโฌโwhat is the nature of this separation or division of power?
The Separation of Power
In Federalist Essay No. 45, James Madison explained the separation of power as follows:
รขโฌลThe powers delegated by the proposed Constitution to the federal government are few and defined.รย Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.รขโฌย (Bold added)
During the debates in the Virginia Ratifying Convention of 1788, Madison re-stated this principle and provided a succinct overview of the powers of the federal government:
รขโฌลThe powers of the general government relate to external objects, and are but few. But the powers in the states relate to those great objects which immediately concern the prosperity of the people. Let us observe, also, that the powers in the general government are those which will be exercised mostly in time of war, while those of the state governments will be exercised in times of peace.รขโฌย
On February 27, 1788, in a message to the Massachusetts Legislature communicating the work of the Federal Convention, Governor John Hancock said:
รขโฌลThe objects of the proposed Constitution are, defence against external enemies, and the promotion of tranquility and happiness amongst the States.รขโฌย
In the New York State Convention debating ratification of the proposed constitution on June 23, 1788, John Jay, who was one of the authors of the Federalist Essays and would later become the first Chief Justice of the United States Supreme Court, expressed this principle as follows:
รขโฌลWhat are the objects of our state legislatures? Innumerable things of small moment occupy their attention; matters of a private nature, which require much minute and local information. The objects of the general (federal) government are not of this nature. They comprehend the interests of the states in relation to each other, and in relation to foreign nations.รขโฌย (Bold added)
Thomas Jefferson addressed this constitutional separation of power in writings throughout his political career. In 1801:
รขโฌลTo the united nation belong our external and mutual relations; to each state severally the care of our persons, our property, our reputation and religious freedom.รขโฌย
Fifteen years later he wrote:
รขโฌลThe best key for the solution of questions of power between our governments is the fact that รขโฌหevery foreign and federal power is given to the federal government, and to the states every power purely domestic.”
The limited powers delegated to the federal government, as stated above, pertain to external or foreign affairs and relations between the States, while the numerous and indefinite powers reserved to the individual States pertain to the lives, liberties and properties of the people.
In Federalist Essay No. 41, James Madison took the powers delegated to the federal government and grouped them into 6 categories of powers:
รขโฌลThat we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be more conveniently done they may be reduced into the different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers.รขโฌย
Madisonรขโฌโขs 6 categories of power breakdown is a mirror image of the separation of powers, i.e., the powers delegated to the federal government pertain to foreign affairs and relations between the States.
An example of the constitutional separation of power between the States and their federal government can be found in a book entitled: รขโฌลThe Story of the Constitution.รขโฌย Published by the federal government in 1937 on 150th anniversary of the signing of the Constitution in the Federal [Constitutional] Convention, it addressed the question of federal power in the field of education:
Q. Where, in the Constitution, is there mention of education?
A. There is none; education is a matter reserved for the States.
The federal government, by its own admission, possesses absolutely no constitutional authority over education. Why did the federal government make this statement? Because within the separation of power, education falls in the class or sphere of power reserved to the individual States.
Note: The same question and answer example used by the federal government in 1937 can be used to show that the many federal laws, including the so-called national health care plan, are unconstitutional. Remove the word รขโฌลeducationรขโฌย and fill in the blank.
The Principles
Based on the above and the structure of the Constitution, we can establish some basic principles.
First, the federal government was created and empowered through a grant of powerรยพnot a surrender of power.
Second, the original grant of power that created and empowered the federal government was a qualified grant of power because the Founders separated or divided power between the States and their federal government.
Third, after deciding to separate power between the States and their federal government, the Founders separated power between the 3 branches of the federal government.
Fourth, after separating power between the States and their federal government and then between the 3 branches of the federal government, the Founders delegated limited enumerated powers to each branch of that government to put the original grant of power into effect.
Fifth, all of the limited powers delegated to the 3 branches of the federal government are restricted to and flow from the second principle because a subsequent delegation power cannot apply to a class or sphere of power that was not granted in the first place.
Sixth, the 3 branches of the federal government cannot constitutionally invoke their delegated powers to circumvent the second principle because a subsequent delegation of power cannot be invoked to exceed the original grant of power.
The Problem
As shown above, there is a wall of separation between the powers delegated to the federal government and the powers reserved to the States. The powers delegated to the federal government only pertain to activities on its side of the wall of separation not to activities on the Statesรขโฌโข side. The federal government has been systemically dismantling this wall stone by stone and functioning as if the powers enumerated in the Constitution are the original grant of powerรยพnot the secondary grant of power. In other words, the secondary powers delegated to the federal government to put the original grant of power into effect are being used to circumvent and obliterate the original grant of power contained within the separation of power.
By allowing the federal government to dismantle the wall of separation and operate on their turf, the States have created an additional problem. When there is a federal usurpation of power and the Tenth Amendment is invoked in response, the federal government simply asserts that the Amendment does not apply because it only pertains to powers not delegated. The Amendment makes no mention of the original grant of power within the separation of power. Thus, the Tenth Amendment, standing alone, has been rendered meaningless by the federal government because that government is hiding behind and operating under the delegated powers enumerated in the Constitution.
The Solution
The people need to insist that their State invoke the separation of power when the federal government usurps its original grant of power because a subsequent delegation power cannot circumvent or exceed the original grant of power. Any act outside of the original grant of power is a separation of power violationรยพnot a delegation of power violation per se. A pure delegation of power violation would be an act outside of the delegated powers consistent with the separation of power. The delegated powers are simply the supplemental powers necessary to put the original grant of power into effect.
The state legislatures need to adopt separation of power resolutions and put the federal government on notice that every act, past, present and future, outside of the separation of power will be nullified as a violation of the original grant of power. Nullification would be across the board and include laws passed by Congress, administrative rules and regulations, judicial determinations, executive orders, etc.
Since the federal government does not exist and his no constitutional power outside of the separation of power, nullification is the proper remedy for any violation of the original grant of power. [2]รย There is a very important reason why the States need to invoke this strategy; constitutionally, it prevents the federal judiciary from intervening.
The power of the federal judiciary extends to cases and controversies arising under the Constitution. (See Article III, Section 2) Any violation of the original grant of power does not constitute a case or controversy under the Constitution. It is a violation outside of the Constitution. Thus, the federal judiciary has no constitutional authority to hear or adjudicate the violation.
When the federal government acts outside of the original grant of power it becomes a political question that goes to the nature of the compact between the several States. John Marshall, Chief Justice of the United States Supreme Court stated: รขโฌลthe judicial power cannot extend to political compacts.รขโฌย As stated by Marshall, the federal judiciary has no jurisdiction over political questions. [3]
Only the States have the power to nullify federal acts outside of the original grant of power. If the people of these United States do not force their state governments to invoke their inherent power and restore the separation of power between the two governments, and soon, federal usurpation of power will be so entrenched that it will be impossible to reverse it.
When the federal government acts outside of the original grant of power it becomes a political question that goes to the nature of the compact between the several States. John Marshall, Chief Justice of the United States Supreme Court stated: รขโฌลthe judicial power cannot extend to political compacts.รขโฌย As stated by Marshall, the federal judiciary has no jurisdiction over political questions. [1]
Only the States have the power to nullify federal acts outside of the original grant of power. If the people of these United States do not force their state governments to invoke their inherent power and restore the separation of power between the two governments, and soon, federal usurpation of power will be so entrenched that it will be impossible to reverse it.
Bob Greenslade [send him email] has been writing for www.thepriceofliberty.org since 2003.
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Endnotes:
[1] In Federalist Essay No. 40, James Madison wrote that the principles forming the foundation of the Articles of Confederation were being carried over into the new constitution:
รขโฌลThe truth is that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation.รขโฌย
And in Essay No. 45, Madison supported the above statement with the following:
รขโฌลIf the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL powers. The regulations of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them.รขโฌย [Caps not added]
[2] It will be asserted that this statement is incorrect because the federal government is supreme and above the States. This erroneous assertion is based, it part, on a provision of the Constitution known as the Supremacy Clause. Found at Article VI, Clause 1, this provision states, in part:
รขโฌลThis Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or shall be made, under the Authority of the United States, shall be the supreme law of the landรขโฌยฆany thing in the constitution or laws of any state to the contrary notwithstanding.รขโฌย
Nowhere in this Clause does it state the federal government or a branch of that government is supreme and above the States. This provision simply states the Constitution and all laws and treaties made pursuant to that document are supreme. It is the compact between the several States, the Constitution, that is supremeรยพnot the federal government. That government is simply the entity designated to execute the limited functions entrusted to it by the terms of the compact consistent with the division or separation of power.
Alexander Hamilton addressed the extent of this Clause in Federalist Essay No. 33:
รขโฌล[I]t is said that the laws of the Union are to be the supreme law of the landรขโฌยฆ It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitutionรขโฌยฆรขโฌย [Bold not added]
In the New York Ratifying Convention, Hamilton stated:
รขโฌลI maintain that the word supreme imports no more than thisรยพthat the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government. The states, as well as individuals, are bound by these laws: but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.รขโฌย
As stated by Hamilton, the Constitution restricts the authority of the federal government to รขโฌลproper objects and powers.รขโฌย When Congress, through its legislative power, departs from its รขโฌลsphereรขโฌย of power, its acts รขโฌลare no longer supreme or binding.รขโฌย
The federal government does not exist and his no lawful authority to act outside of the separation of powerรยพand that includes the judiciary.
[3] See Abel Upshurรขโฌโขs book: The Federal Government, Its True Nature and Character https://www.constitution.org/ups/upshur.htm (1868), Chapter IX (EXTENT AND LIMITS OF THE JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES) for an examination of this issue.
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