During the ratification debates, Oliver Ellsworth, the Supreme Court’s third chief justice, put it this way: “If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void.”
In Federalist #78, Alexander Hamilton wrote, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.”
And in 1798, Thomas Jefferson wrote that “whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
See the pattern?
I won’t get into a laundry list of everything that should qualify as “void” today under the Founders’ Constitution, but here are a few to set the stage: ACA, ATF, DEA, EPA, GCA, NFA, NSA, TSA.
In other words, if you have a problem with the federal government, you need something outside the federal government to stop it. That would be the states and the people.
First, let me be clear. This isn’t my idea. I didn’t dream it up one night. It comes from some of the most prominent Founding Fathers.
While James Madison wrote the most specific and complete set of instructions on how to stop the federal government without relying on the federal government to limit itself, he was far from the only Founder to talk about states and individuals as a check on federal power.
Even Hamilton agreed. In Federalist #28 he wrote that state governments would offer security against “invasions of the public liberty by the national authority.”
A little-known Founding Father from Massachusetts also made the case, just like Madison and Hamilton did, that the states were the strongest check on federal power, should they work together to oppose it.
In the Massachusetts Ratifying Convention, Theophilus Parsons said that the state legislatures were, “superior to all the parchment checks that can be invented.” And when they’re organized in opposition against federal acts, he said that “none but madmen would attempt a usurpation.”
Like Madison, who in Federalist #46 recommended that states and individuals employ “a refusal to cooperate with officers of the Union,” Parsons advised the same.
He continued, “But, sir, the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance.”
The common thread from Madison to Parsons and even to Hamilton is that states and individuals are an essential part of the checks-and-balances system of the Constitution. They are a counteracting force, especially when two or more branches of the federal government work against us.
As these Founders taught us, when states and individuals take action, they are extremely effective as a roadblock to increasing federal power.
Whether it’s blocking federal gun control, rejecting mass surveillance, ending asset forfeiture or even bringing down the Federal Reserve, the focus should be on individuals and states, not on federal courts and federal elections.
This is just what Thomas Jefferson advised as well. In response to powers “which have not been delegated,” he told us that nullification is the “rightful remedy.”
— Michael Boldin
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