Here, then, are a few examples of how knowledge of our constitutional past can alert the mind and imagination to new possibilities. Revisiting the historical record and entering the outlook of the Framers can be a source of inspiration. We may not want to return to the prescriptions of the Framers in every detail, but awareness of their thinking is a prerequisite for revising their ideas via the amendment process. Without it we do not even know what the Constitution was and is.
Many will be surprised to learn that the Constitution allows the states potentially limitless powers, known as powers of police, that, although recognized by the early courts as wholly immune from federal interference, are now usurped with abandon by the federal government. Considered a direct attribute of sovereignty, these powers include the authority to make all laws within a states territory for the protection of public order, safety, health, welfare, and morals. Included are laws prohibiting or regulating murder, violence, fraud, obscenity, intoxicants, narcoticsthe list is potentially endless.
Chief Justice John Marshall, though a renowned champion of strong national governance, declared in several landmark decisions that the general government had no jurisdiction over such matters except where authorized by an explicit grant of power, such as the power to punish counterfeiting given in article 1, section 8. Yet today the general government routinely asserts its dominance over health, education, welfare, the environment, public safety, criminal justice, and other matters that, constitutionally, are police powers belonging exclusively to the states.
A second example concerns immigration. In Federalist No. 2, Hamilton cites as essential supports for a union of the states that Providence has been pleased to give this one connected country to one united peoplea people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, [and] very similar in their manners and customs.
Today the federal government is failing to slow the flood of immigrants who exhibit little or no interest in making Americas traditional institutions and culture their own.
As concern over immigration mounts, most Americans are unaware that, under the Constitution of the Framers, the states enjoyed extensive authority to regulate immigration into their territory.
In the 1849 Passenger Cases a divided Supreme Court split four-to-four on where the power to regulate immigration lies. The division, however, was not over whether the states could regulate immigration but whether the federal government also could do so.
Even the four justices who did support a federal role went to great lengths to stress that no power of the federal government could compel the states to admit undesirable aliens, such as, in the delicate formulation of Justice Grier, lunatics, idiots, criminals, or paupers.
Meanwhile, Chief Justice Taney and three other justices insisted that the regulation of immigration, being a police power, was a matter to be addressed solely by the states. As Justice Woodbury explained, it is for the State . . . to decide on what is sufficient cause for . . . [excluding aliens],whether . . . sickness or crime . . . , danger of pauperism, danger to health, danger to morals, danger to property, danger to public principles by revolutions or change of government, or danger to religion.
Yet today the federal government controls all aspects of immigration. Federal judges routinely deny the states any means either of controlling the admission of aliens into their territory or of protecting their citizens from resulting tax burdens or other ill effects.
Turning to the third and final example, perhaps no other regulations of the federal government are more harshly administered than those concerning the use of land.
What many Americans, including members of Congress, dont know is that the Framers intended that the states, not the general government, would possess ultimate control over all land within their territory. To assure that this always would be so, the Framers inserted in the Constitution a requirement that the general government obtain permission from the state legislature before purchasing any property within a state to be used for federal purposes.
Article 1, section 8, clause 17, which gives the federal government exclusive jurisdiction over the District of Columbia, allows it to exercise like Authority over all Places [and here are the significant words] 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.
Why this was done is spelled out explicitly in a few brief paragraphs of Madisons Notes of Debates in the Federal Convention. The relevant passage is as follows: On the clause
[2:510; Madison, 5 Sept.]
to exercise like authority over all places purchased for forts &c.
Mr Gerry contended that this power might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the Genl. Government
Mr. King thought himself the provision unnecessary, the power being already involved: but would [and here are the key words] move to insert after the word purchased the words by the consent of the Legislature of the State This would certainly make the power safe.
Mr. Govr Morris 2ded. the motion, which was agreed to nem: con:. . . . [Emphases added]
That is the entire record of the origins of this provision. So that the states would not be intimidated "into an undue obedience to the general government," the latter was made dependent on the states for the acquisition of property in their territory.
For more than eighty years, when the general government wanted to build a fort or a lighthouse or a post office, Congress would pass a statute requesting that the appropriate state legislature cede land to the general government for the purpose. The state legislature, at its discretion, would approve, and, if suitable property was not available on the open market, the legislature would use its reserved power of eminent domain on behalf of Congress, the latter having no such power.
But then in 1875 the Supreme Court's decision in Kohl v. U.S. literally inverted the previously existing relation of the two levels of government concerning land use.
For the Court, Justice Strong wrote:
The powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the States. These are needed for forts, armories, and arsenals, for navy-yards and light-houses[, etc.] . . . If the right to acquire property for such uses may be made a barren right by the unwillingness of property-holders to sell, or by the action of a State prohibiting a sale to the Federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a State . . . . This cannot be. [Emphasis added.]
The Court completely ignored that this dependence of the general government on the states was precisely what the Framers had intended.
Strong went on to argue that, as the states derive the power of eminent domain from their sovereignty, the general government should have the power as well, since it is as sovereign within its sphere as the States are within theirs. This last inference is particularly disingenuous. For part of the states retained sphere of sovereignty was the ultimate control of all land within their borders except for any that had been ceded. It is impossible to give ultimate control over state territory to the federal government and still to leave ultimate control with the states. Recognizing that this power could not reside in two places and believing that to put it in the general government would make hash of the states reserved powers, the Framers made a conscious decision to leave eminent domain where it had beenwith the states. In its ruling in Kohl, the Supreme Court brazenly flouted this explicit intention of the Framers.
Soon the Framers' worst fears were realized. Over the next 21 years, the previous sovereignty of the states was obliterated root and branch. The following summary of the Supreme Courts 1896 ruling in Chappell v. United States, taken from FindLaw, says all we need to know:
The fact that land included in a federal reservoir project is owned by a state, or that its taking may impair the states tax revenue, or that the reservoir will obliterate part of the states boundary and interfere with the states own project for water development and conservation, constitutes no barrier to the condemnation of the land by the United States. [Emphases added.]
Here, then, are three examples of far-reaching changes that have been inflicted unlawfully on our nations constitutional practice. Many others could be cited. What is important is that these changes have all but destroyed the federalism and the government of checks and balances that the Constitution was meant to guarantee.
How has it come to this? The most obvious culprit has been the Supreme Court. Hamilton, in Federalist 78, wrote that of the three branches the judiciary would always be the least dangerous to the political rights of the Constitution, because it was to have neither FORCE nor WILL, but merely judgment." Yet if the Courts incredible ruling in Kohl is not an example of will rather than judgment, I do not know what would be. Will may be the least of it; the murder of federalism with malice aforethought might be a more apt description.
How might such judicial activism be discouraged or its effects minimized? In keeping with the judiciarys responsibility to exercise judgment, not will, I think the Court itself might do well to adopt as a rule of jurisprudence that, in matters of constitutional interpretation, older precedents be given more weight than recent ones in the absence of compelling evidence that the former were in error. This rule would be the converse of that governing interpretation of statutes, which holds that, where laws are in conflict, the most recent act of the legislature is controlling.
But the courts are not entirely to blame. Ours was to be a government of checks and balances, in which all three branches were to protect the Constitution by jealously guarding against abuses by the others. But, with few exceptions, the intended competition among the branches and levels of government has broken down.
As a way for Congress to reassert its duty to the Constitution, I proposed several years ago that it might establish committees (or one joint committee) on delegated powers, with responsibility for determining the constitutionality of proposed legislation before it would be allowed to go to the floor.
A similar purpose might be served in the executive branch by the appointment of a constitutional advisor to the president. Significantly, the mechanism by which the president can promote a revival of effective constitutionalism is already present in his veto power. While the Constitution provides that the president may object to a measure for any reason, I think it is significant that the first six presidentsfrom Washington through Quincy Adamsused the power exclusively to register constitutional objections. And not once during all of those years was a presidential veto overridden by Congress. In our time, it might be helpful if the president, in future veto messages, would formally distinguish between objections of a constitutional nature and those of a prudential nature.
posted on 01/08/2004 2:05:08 PM PST
(Islam .......it's worse than even the Muslims thought it was !)
In other words, the
we are getting here is based on the
we got a long time ago!
Great post, now I see how some here in Nevada can contend that the
that Nevada got when the Lincoln administration made Nevada's surrender of her public lands a condition of statehood is constitutional.
They simply engage in the same sort of selective memory you have illustrated.
posted on 01/08/2004 3:13:43 PM PST
(Nuke the U.N!)
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