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CONNECTICUT
GRASSROOTS ALLIANCE
An Alliance of 28 Grassroots Organizations in Connecticut
HISTORICAL
PRECEDENT FOR STATE LEGISLATURE TO ASSERT TENTH AMENDMENT AUTHORITY TO DECLARE
FEDERAL LEGISLATION UNCONSTITUTIONAL | | |
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I.
Background: Declaration of Independence. | |
The
founders clearly stated in two documents that all people have certain inherent
rights that could not be taken away. They believed that in order to protect these
rights, the people formed governments, which derived their power from the consent
of the people governed. Because the government of England became destructive of
those ends, the founders declared independence from that government. They made
these statements in the Declaration of Independence. |
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Relevant
sections of the Declaration of Independence: | |
"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 power 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 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." |
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"…that
these United Colonies are, and of right ought to be, free and independent states…that
they have full power to levy war, conclude peace, contract alliances, establish
commerce, and to do all other acts and things which independent states may of
right do." | | |
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II.
Background: United States Constitution. | |
This collection of free and independent states, having established in the Declaration
of Independence that they were "United Colonies", following the conclusion
of the Revolutionary War, saw the need to establish a new governing authority
for the specific purpose of protecting these United Colonies and of reconciling
disputes among them. The document they developed, the United States Constitution,
established the framework of that governing body, and established limitations
on what that governing body was allowed to do.
Considering legislative
powers, enacted by elected representatives of the people, to be of primary importance,
the founders established the legislative branch first and specified its powers
in Article I. Next, the founders established the executive branch, specifying
its powers in Article II, and established the judicial branch next, specifying
its powers in Article III.
During the process of ratification, the founders
wrote extensively about federal authority versus the authority of the states.
These writings can be found in the Federalist Papers and the Anti-Federalist Papers.
Many feared the power of the federal government. Subsequently, ten amendments
were added to the Constitution, known as the Bill of Rights. The preamble to the
Bill of Rights explains that when individual states held conventions to ratify
the Constitution, the states were concerned about potential abuses of power by
the federal government, and that further restrictive clauses should be added to
the Constitution to prevent "misconstruction" or "abuse of power".
That's why the first ten amendments to the Constitution were adopted.
The ninth and the tenth amendments were especially important in this regard, to
specifically clarify that the Constitution placed limits on the power of the federal
government. The ninth and tenth amendments state, in no uncertain terms, that
the powers not specifically delegated to the federal government were retained
by the states and by the people. | | |
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Relevant
Constitutional Provisions: | | |
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Preamble
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"We the People, in order to form a more perfect union, establish
justice, insure domestic tranquility, provide for the common defense, promote
the general welfare, and secure the blessings of liberty to ourselves and to our
posterity, do ordain and establish this Constitution for the United States of
America." | | |
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Article
I, Section 8 -
"The
Congress shall have power to lay and collect taxes, duties, imposts and Excises,
to pay the debts and provide for the common defence and general welfare of the
United States; but all duties, imposts and excises shall be uniform throughout
the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations; and among the several States, and with
the Indian tribes;
To establish an uniform rule of naturalization, and uniform
laws on the subject of bankruptcies throughout the United States;
To coin
money, regulate the value thereof, and of foreign coin, and fix the standard of
weights and measures;
To provide for the punishment of counterfeiting the
securities and current coin o f the United States;
To establish post offices
and post roads;
To promote the progress of science and useful arts, by securing
for limited times to authors and inventors the exclusive right to their respective
writings and discoveries;
To constitute tribunals inferior to the supreme
court;
To define and punish piracies and felonies committed on the high seas,
and offenses against the Law of Nations;
To declare war, grant letters of
marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be
for a longer term than two years;
To provide and maintain a navy;
To make
rules for the government and regulation of the land and naval forces;
To provide
for calling forth the militia to execute the laws of the union, suppress insurrections
and repel invasions;
To provide for organizing, arming, and disciplining the
militia, and for governing such part of them as may be employed in the service
of the United States, reserving to the states respectively, the appointment of
the officers, and the authority of training the militia according to the discipline
prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever,
over such district (not exceeding miles square) as may, by cession of particular
states, and the acceptance of Congress, become the seat of the government of the
United States, and to exercise like authority over all places purchased by the
consent of the legislature of the state in which the same shall be, for the erection
of forts, magazines, arsenals, dock-yards and other needful buildings; - and To
make all laws which shall be necessary and proper for carrying into execution
the foregoing
powers, and all other powers vested by this Constitution in
the government of the United States, or in any Department or Office thereof. |
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Bill
of Rights Preamble -
"The Convention of a number of the States, having
at the time of their adopting the Constitution, expressed a desire, in order to
prevent misconstruction or abuse of its powers, that further declaratory and restrictive
clauses should be added: And as extending the ground of public confidence in the
government, will best ensure the beneficent ends of its institution: Resolved
by the Senate and House of Representatives of the United States of America, in
Congress assembled, two-thirds of both Houses concurring that the following Articles
be proposed to the Legislatures of the several States, as Amendments to the Constitution
of the United States, all or any of which Articles, when ratified by three fourths
of the said legislatures, to be valid to all interests and purposes, as part of
the said Constitution viz…" | | |
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Ninth
Amendment -
"The enumeration in the Constitution of certain rights
shall not be construed to deny or disparage others retained by the people." |
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Tenth
Amendment -
"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." |
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III.
Does the state legislature have the authority to declare a federal law unconstitutional? |
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A.
The Constitution does not grant to any branch of the federal government the
authority to declare any federal law unconstitutional. |
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The
first three Articles of the Constitution describe the authority of the three branches
of government. None grant any specific authority to any branch to determine the
"constitutionality" of any federal law.
According to the Tenth Amendment, because the Constitution does not delegate that
power to the United States, and because that power is not prohibited to the states
by the Constitution, the power to declare the constitutionality of any federal
law is a power that is reserved to the states respectively, or to the people. |
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B.
How did it come about that the United States Supreme Court declares federal laws
unconstitutional? | |
In
1803, the Supreme Court was asked to decide a case called Marbury v. Madison,
1 Cranch 137, 177 (1803). Outgoing President John Adams had appointed Marbury
as justice of the peace in the District of Columbia. The appointment was signed
and sealed, but not delivered. President Madison refused to deliver to Marbury
his appointment. The case went before the Supreme Court.
Chief Justice
John Marshall had a problem. He believed that Marbury had a legal right to the
appointment but the Constitution did not grant appellate jurisdiction to the Supreme
Court to decide the case. To prevent dismissal of the case, Chief Justice Marshall
took it upon himself to declare that the Supreme Court did have the appellate
jurisdiction to hear the case, and decided in favor of Marbury. From that point
forward, the ability of the Supreme Court to determine the constitutionality of
laws was accepted. | | |
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C.
How does the state legislature have the authority to declare a federal law unconstitutional? |
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The
United States Constitution, pursuant to the Tenth Amendment, states that the powers
not specifically delegated to the federal government, nor prohibited by it to
the States, are powers that are retained by the States or the people.
The
power to declare a federal law unconstitutional is not a power that is specifically
granted to the federal government by the United States Constitution, nor prohibited
by it to the States. Therefore, it is a power that is retained by the States or
the people.
It
is clear from the Tenth Amendment that the power to declare a federal law unconstitutional
is a power that is retained by the States and by the people.
If
one branch of government, the judicial branch, may determine the constitutionality
of a statute, another branch may as well since all three branches are co-equal
branches of government.
In
this case, the State General Assembly is merely asserting the power that it always
retained, pursuant to the Tenth Amendment, to declare federal laws unconstitutional.
The power of
a State to declare an undelegated power of the federal government to be unconstitutional
is not a radical or novel idea. In fact, it was an essential principle of the
founders. None other than Thomas Jefferson stated in the Kentucky Resolution of
1798: | | |
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"Resolved,
That the several States composing, the United States of America, are not united
on the principle of unlimited submission to their general government; but that,
by a compact under the style and title of a Constitution for the United States,
and of amendments thereto, they constituted a general government for special purposes
- delegated to that government certain definite powers, reserving, each State
to itself, the residuary mass of right to their own self-government; and that
whensoever the general government assumes undelegated powers, its acts are unauthoritative,
void, and of no force: that to this compact each State acceded as a State, and
is an integral part, its co-States forming, as to itself, the other party: that
the government created by this compact 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; but that, as
in all other cases of compact among powers having no common judge, each party
has an equal right to judge for itself, as well of infractions as of the mode
and measure of redress." | | |
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Similarly,
James Madison believed in a State's ability to declare a federal law unconstitutional.
In fact, the Virginia legislature declared the Alien and Sedition Acts unconstitutional.
Madison wrote in the Virginia Resolution of 1798: |
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"Resolved…That
this Assembly doth explicitly and peremptorily declare, that it views the powers
of the federal government, as resulting from the compact, to which the states
are parties; as limited by the plain sense and intention of the instrument constituting
the compact; as no further valid that they are authorized by the grants enumerated
in that compact; and that in case of a deliberate, palpable, and dangerous exercise
of other powers, not granted by the said compact, the states who are parties thereto,
have the right, and are in duty bound, to interpose for arresting the progress
of the evil, and for maintaining within their respective limits, the authorities,
rights and liberties appertaining to them….That the good people of this commonwealth,
having ever felt, and continuing to feel, the most sincere affection for their
brethren of the other states; the truest anxiety for establishing and perpetuating
the union of all; and the most scrupulous fidelity to that constitution, which
is the pledge of mutual friendship, and the instrument of mutual happiness; the
General Assembly doth solemnly appeal to the like dispositions of the other states,
in confidence that they will concur with this commonwealth in declaring, as it
does hereby declare, that the acts aforesaid, are unconstitutional; and that the
necessary and proper measures will be taken by each, for co-operating with this
state, in maintaining the Authorities, Rights, and Liberties, referred to the
States respectively, or to the people." | | |
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The
founders understood that the federal government is a government of limited powers,
and when that government oversteps its bounds in adopting any law, each state's
legislative body has the retained authority, pursuant to the Tenth Amendment,
to declare that law unconstitutional. Indeed, as the founders declared, each state
has the duty to declare such a law repugnant to the Constitution and, therefore,
to be null and void. Connecticut also retains this authority, and this duty. |
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| For
more information, contact: | Attorney
Deborah G. Stevenson, Executive Director
National Home Education Legal Defense,
LLC
226 East Flag Swamp Road
Southbury, CT 06488
Office:
860.354.3590 | Cell: 203.206.4282 | Fax:
860.354.9360
Email: info@nheld.com |
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