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There has been a growing number of state legislatures considering bills that push back against federal overreach. Montana and Idaho have considered legislation to review presidential executive orders. Arkansas is standing up against Biden and his Department of Education’s push to have biological men compete against women in sports. Governors, legislatures, and even Sheriffs in Texas, Wyoming, and Arizona are acting to ban enforcement of federal gun control measures. And let’s not forget the sanctuary state movements in California, Arkansas, and Oklahoma.
How do states reclaim their rightful role in the republic under the United States Constitution? Why do we call the government of the United States the federal government? What is federalism, and why is it important to the republic? More importantly, how can we use federalism to protect our rights?
The idea of federalism is not new in the United States. The convention to draft the Constitution was called the Federal Convention.
On Monday the 14th of May, A.D. 1787, and in the eleventh year of the independence of the United States of America,…
The Records of the Federal Convention of 1787
Although the term federal was not used, the Articles of Confederation and the Lee Resolution that the colonies used to declare independence included plans for the new states to work together.
That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.
Lee Resolution, Journals of the Continental Congress
A confederation is an alliance, a collection of entities.
To unite in a league; to join in a mutual contract or covenant.
Confederate – Webster’s 1828 Dictionary
The newly independent states confederated together on November 15th, 1777, when they joined in the Articles of Confederation. So what is this federalism we’ve been talking about?
Consisting in a compact between parties, particularly and chiefly between states or nations; founded on alliance by contract or mutual agreement; as a federal government, such as that of the United States.
Federal – Webster’s 1828 Dictionary
Federalism is the idea of several entities⏤mostly states, and nations, that join together under a compact. In America, federalism is the support of the compact that is the Constitution. The Constitution not only created a new union, but it also created a new government for the United States of America, delegating to it limited powers. At the beginning of the republic, there was even a political faction known as the Federalists, those who supported the new constitution and the powers delegated to the new central government. The Tenth Amendment confirmed what many Federalists understood about the Constitution: That while power was distributed between the states and the new government, those powers did not overlap.
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.
U.S. Constitution, Amendment X
That means today, a Federalist would be someone who supports the Constitution, not only recognizing the legal limitations it places on the government of the United States, but the powers of the parties to that compact, the several states. While many in America have adopted the idea of federal supremacy over that of federalism, there are some in the states looking to restore the compact and the balance of powers the Constitution established.
Many claim that these states are pushing for anarchy when what they are doing is upholding the supreme law of the land. As the Tenth Amendment states, any power not specifically delegated to the United States in the Constitution generally remains with the states. When those in the federal government exercise powers not delegated to them, they are stealing power from the states. So it’s quite right for the states to assert themselves to retain their power. But doesn’t the Constitution say federal law is supreme?
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution Article VI, Clause 2
Only the laws of the United States made in pursuance of the Constitution are supreme. So when Congress enacts a law that is not within their delegated power, it’s not supreme.
There is no position that 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. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
Alexander Hamilton, Federalist Papers #78
The idea that a delegated authority could act contrary to their commission is so absurd Alexander Hamilton compared it to putting a servant above their master. Rather like those in public service ruling as masters of the people they are supposed to serve. And Mr. Hamilton doesn’t just say that these acts are wrong, but that they are void, empty, and have no legal force. This is not simply the opinion of one of our Founding Fathers. Even the Supreme Court recognized in 1803 the supremacy of the Constitution over the acts of the legislature.
Certainly, all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
What is true for Congress is just as true for the rest of the government. When the President signs an Executive Order that does anything but directs the executive branch to follow the laws made pursuant to the Constitution, he is acting contrary to his commission in the United States Constitution. And since those on the federal courts are bound by the same Constitution, when they ignore its language, their opinion is just as void as the acts of the other two branches. The Constitution does not delegate to the United States the power to define, much less redefine, what it means; that power remains with the states.
As parties to the Constitution, only the states have the legal authority to define or change the Constitution. That’s why the Constitution can only be amended by the ratification of three-fourths of the states. So when a leader in Congress dismisses the restrictions placed on them by the Constitution, when a President says that the amendments are not absolute, or when a federal court finds in a way contrary to the language of the Constitution, their actions are void. It’s not anarchy or disobedience for states to assume their rightful powers within this republic; it is their duty.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
U.S. Constitution, Article VI, Clause 3
When your state representative and senator, your governor, or even your state judges take their office, they must swear or affirm in their oath of office to support the Constitution of the United States of America. That includes the supremacy clause in Article VI, Clause 2, and the Tenth Amendment. They have sworn or affirmed to only recognize the laws of the United States made in pursuance of the Constitution, and to limit the powers of the federal government to those delegated by that same Constitution. So when state government officials stand up against federal acts which are void, they are not promoting anarchy; they are performing the duty they swore or affirmed when they took office: To support the Constitution of the United States.
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,
While some people see federalism as a dirty word, it’s an important part of the American Republic. It’s the states defending their rights and powers as guaranteed by the Constitution. It’s the role of the states as a check and balance against federal power. And it’s the protection of your right to consent to the powers of government. As the states have succumbed to federal bribery and abdicated not on their powers, but on their duty to protect their citizens, the federal government has grown into the behemoth it is today. Are there things in this modern world that should be done on a national level that is not authorized by the Constitution? Probably, but that is not an excuse for ignoring the supreme law of the land, allowing the rights of the people to be infringed, and allowing the federal government to exercise powers not consented to by the people.
If the American people are to return to their rightful position as masters of their governments, it will not begin in Washington, D.C. It won’t even begin in our statehouses. It will begin with people exercising their consent at the county and city levels. Then, when we have regained control of the local government, we can begin to restore our states to their rightful place as masters of the federal government. Until that time, this experiment in self-government that has been entrusted into our hands will be viewed as a failure.
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