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Wednesday, January 16, 2013

The Unconstitutionality of the Constitution

On February 16, 2011, the Idaho state House of Representatives passed HO117, a bill regarding state sovereignty. Within only 4 pages, this landmark legislation declared Idaho's Sovereignty and Nullified the potential impact of US HR 3200, "America's Affordable Health Choices Act of 2009," affectionately or derisively referred to as "Obamacare."

Unfortunately, the bill failed to pass Idaho's Senate. In an editorial available at the Madison County Republican Committee website, Senate Pro Tempore Brent Hill cites two justifications for his "No" vote:

First, he says,  "In the event a state or other entity deems a law unconstitutional, it can appeal to the judiciary branch of government." While certainly reasonable in appearance, Senator Hill is standing on Constitutionally unsound ground because he goes on to say:

Article III of the U.S. Constitution grants the power to determine the constitutionality of a law exclusively to the court. Had the Constitution not specified where that right resides, it would be subject to interpretation by every citizen or state, resulting in anarchy and the ultimate demise of the Constitution itself. Accordingly, no court has ever upheld a state effort to nullify a federal law.

I don't know what Constitution Senator Hill has been reading, but the framers of the Constitution considered the Judiciary to be the weakest of the three branches of our Federal Government. In fact, Article III of the US Constitution says nothing about who has the authority to determine the Constitutionality of US laws. Further, nowhere in the Constitution is such an authority provided.

In an apparent reply to William Jarvis, Thomas Jefferson wrote:
You seem to consider the federal judges as the ultimate arbiters of all constitutional questions, a very dangerous doctrine, indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have with others the same passions for the party, for power and the privilege of the corps. Their power is the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all departments co-equal and co-sovereign within themselves (1820. ME 15:277)
In other words, each branch of the federal government had an equivalent authority to ascertain the Constitutionality of law. Of course, the Founders saw no need for the Constitution to provide a single authority to any branch of government to determine the constitutionality of laws. They did not see the possibility of the legislature writing laws running afoul of the constitution, nor did they consider the possibility of executive orders having influence and impact on anything larger than the executive branch itself. Yet, we know for a fact that both have happened.

The practice of the courts ascertaining the constitutionality of law didn't begin as a regular responsibility until long after Marbury V. Madison was heard by the Supreme Court in 1803. Still it is important to note Justice John Marshall's position on the constitutionality of laws.

According to law.onecle.com:
“The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States” [as seems to be the case with "Obamacare"]...“but, happily, not of an intricacy proportioned to its interest.”627 First, certain fundamental principles warranting judicial review were noticed. The people had come together to establish a government. [The Framers] provided for its organization and assigned to its various departments their powers and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose “if these limits may, at any time, be passed by those intended to be restrained.” Because the Constitution is “a superior paramount law,” it is unchangeable by ordinary legislative means and “a legislative act contrary to the constitution is not law.”628 “If an act of the legislature, repugnant to the constitution, is void, does it notwithstanding its invalidity, bind the courts, and oblige them to give it effect?” The answer, thought the Chief Justice, was obvious. “It is emphatically the province and duty of the judicial department to say what the law is.... If two laws conflict with each other, the courts must decide on the operation of each.”

“So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”
According to Marshall, the court settles disputes. The Constitutionality of laws is an ancillary consideration to settling the dispute. Further, it appears that his consideration is the dispute between two equivalent laws where one is more aligned with the Constitution than the other.

A year after Marbury V. Madison—perhaps in rebuttal to Marshall's opinion, Thomas Jefferson wrote to Abigail Adams the following:
The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.
When the executive has the power to "stack" the judiciary in his favor, it is easy to see why Jefferson held the opinion of the court that he did. So, the question becomes, who restrains the judiciary? Who tells them whether or not their opinions and decisions are constitutional?

As of June 2012, however, the Supreme Court of the United States held Obamacare to be “affirmed in part and reversed in part.” It was affirmed that the individual mandate was a tax and constitutionally sound while it was reversed in its draconian measures to force all states to comply.  While the law was not entirely overturned as unconstitutional, several good things came as consolation prizes.

Among these, the opinion of the Court—as delivered by Chief Justice Roberts held that the Supreme Court is not responsible for overturning bad law. Consequently, it seems unwise to look to the Supreme Court to save the American people from the overreaches of federal law.

Senator Hill presents a possible solution in his second justification for his “NO” vote:
If we are not satisfied with the decisions of the judiciary, the Constitution provides for a further remedy. By a vote of two-thirds of the state legislatures, we can demand a constitutional convention to amend the Constitution and clarify its intent. Once again, the drafters of our Constitution provided an orderly course of action for the states to exercise their rights.

A Constitutional Convention. That seems reasonable. Right?

Well, yes. It is reasonable. It is also legal and constitutional. However, there are three inherent problems with this fallback position:
  • First, while ironically the saving grace of a convention of the states, constitutional amendments by way of conventions are intentionally difficult—next to impossible. 2/3 of the States would have to agree on the proposed amendment. While some amendments have been proposed and then ratified within a matter of months, the 27th amendment, the last amendment to the Constitution, was proposed 25 September 1789 but wasn't ratified until 7 May 1992. 211 years! Do we really want to roll that die?
  • Second, a constitutional convention was the birthplace of the existing Constitution, yet the delegates who attended the convention did not go with the intention of drafting a new charter but only amending the Articles of Confederation. The implication? A constitutional convention places ALL of the cards on the table. The existing constitution could be amended or replaced entirely.

    While it’s true that the Bill of Rights was produced as the result of a constitutional convention, it is also true that the delegates had recently adjourned the convention that produced the Constitution. They weren’t about to give it an overhaul. Now, more than 200 years later, a lot of contempt for the Constitution has been bred by cunning and evil minds. To call for a Constitutional Convention now is to open the Constitution to dramatic vulnerability.
  • Third, the 9th and 10th amendments of the Constitution reserve "all other rights" to the people and the several states respectively. Yet, the "Affordable Care Act" ignores the restraints of both of these amendments—a consideration Senator Hill acknowledges in his first two paragraphs:
The federal government’s lack of respect for our Constitution has long troubled me. The government’s ever-expanding control over the people it was created to serve and its encroachment on states’ rights are contrary to the fundamental principles imbedded in the Constitution.

An obvious violation is the recent health care reform law. In its zeal to “take care of us” from first breath to last, the government is robbing us of our freedoms.

Unfortunately, Senator Hill’s actions suggest anything but a commitment to the Constitution and state’s rights.

HO117 asserted Idaho’s right under the 10th amendment to declare federal law null and void in the state of Idaho. It would have protected uninsured tax payers from the most egregious tax hike in the history of the United States. But, the Idaho State legislature failed to step up and protect Idaho’s citizens. And now, in 2013, the Idaho State legislature, encouraged by the Governor, is acquiescing to the demands of the federal government and creating a State-run Health Insurance Exchange.

So, who has the authority to determine the Constitutionality of law? The Declaration of Independence gives us a clue:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Because, “it is the Right of the People to alter or to abolish it, and to institute new Government,” the final authority to determine the constitutionality of laws rests neither with law makers, judges, nor executives, but with the people.

1 comment:

  1. Scott, great article with great quotes, you need a letter to the editor with the Jefferson quote disabusing Hills Paradigm of Judicial superiority.


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