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A Second Independence Day: Jefferson and the Kentucky Resolutions
Tuesday, February 23, 2010 9:44 AM

In a recent post, entitled "Saving America," I suggested that state legislatures are our last, best hope of resisting the tyrannical usurpation of power by the central government.

By working through the legislatures, who are the chosen representatives of the people of the individual states, we can preserve our republican form of government by working within the parameters of the Constitution. This approach creates the possibility that the overreach of the federal government can be slapped down through a deliberative and representative process rather than through chaos and civil unrest, which I fear is the alternative.

Should the Democrats press ahead with their suicidal attempt to order every American to buy health insurance, the reality is that the American people simply will not stand for it. Freedom and liberty are too deeply ingrained in our DNA to put up with this kind of tyranny. It just will not happen. Almost certain and serious social dislocations and violence will result, unless we can find a way through our elected representatives to stem the tide.

My central thesis is this: our central government is a government of limited, prescribed and proscribed powers. It legitimately, legally and morally possesses only those powers delegated to it by the states in the federal Constitution. When it exercises authority beyond the limits established by the states in the Constitution, its exercise of authority is immoral, abusive, tyrannical and most importantly, of no legal weight.

More to the point, the states are under no obligation of any kind to submit to such  of power. We must never forget that the central government is the creation of the states, not the other way round. The states cautiously delegated certain prerogatives to the federal government for the sake of preserving the unity of the fledgling Union and strengthening its ability to defend us against foreign threats, but reserved every other right of action for themselves.

The powers assigned to the central government were strictly defined and limited by the Founders. They are "enumerated powers," meaning you can list them using numbers. Eventually you run out of delegated powers, and get to the end of the list. Any power that the central government tries to exercise that's not on that list is an exercise of power which has no moral or legal force.

Such an exercise of power is itself a violation of the Constitution, turns the the slave into the lord over the master, elevates the created thing above its creator, and as such is certainly and wholly immoral. Elevating the created thing over the creator is nothing less than age-old idolatry.

Perhaps unsurprisingly, the central government tried to impose its will on the states in an unconstitutional manner almost immediately after the founding, through the "Alien and Sedition Acts" of 1798.

The Kentucky legislature adopted a series of resolutions, known as "The Kentucky Resolutions of 1798," to respond to this overreach. Years later, it was revealed that the resolutions were actually authored by Thomas Jefferson. Thus they give us a window of insight into his perceptive thinking on constitutional issues.

What's critical for our purposes is not so much the particular provisions of the "Alien and Sedition Acts" but the the issues of governance they raised. They clearly represented an overstepping of constitutional limits, and this is what animated Jefferson and the legislators of the Bluegrass State.

What follows is the first of these Resolutions, with commentary on the contemporary guidance it and the remaining resolutions provide for state legislatures looking to take a modern stand for freedom and against the tyranny of an overweening central power. This will be of particular significance as they decide how to respond to the autocratic and wholly unconstitutional takeover of health care by the federal government.

Here is the first of the resolutions, with salient components bolded:

1. 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.

It is critical, as Jefferson reminds us, to note that the states "delegated to that (general) government certain definite powers..." In other words, we have forgotten that the states created the general government, not the other way round, and that it is the states who delegate authority to the general government, not the reverse.

We have become so accustomed to the gargantuan size and power of the central government that we have begun to think of its obese and grotesque size as normal, accepted, even appropriate in some way, and to believe that whatever authority states have is authority the central government has allowed them to have. Once again, this is 180 degrees out from the vision of the Founders.

The states are the source of whatever power the central government has, since the states created the central government through the compact which we know as the Constitution. The states do not have only that freedom of action the central government allows them to have; rather, the central government has only those powers the states allow it to have.

Since taking over our entire health care system is not among the "enumerated powers," the federal government has no constitutional, legal or moral right to do it. Any such effort is, as Jefferson pointed out, "unauthoritative, void and of no force." I stand with Mr. Jefferson on this one, and every state legislature should do the same.

The good news is that no less than 35 states have taken steps of one kind or another to stand on their Tenth Amendment rights and stare down the president and the Democrats in their attempt to to use a "rod of iron" to impose MussoliniCare on the rest of us.

Jefferson correctly wrote that when "powers are assumed (by Congress) which have not been delegated, a nullification of the acts is the rightful remedy: every State has a natural right in cases not within the compact (i.e. the Constitution) to nullify of their own authority all assumptions of power" beyond what the Constitution authorizes.

Otherwise, he adds, "without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise the right of judgment for them."

He points out that the States and the States alone have the right to make this determination, since the States alone are "parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it." Congress, he correctly observes, is not even a player in making this determination, since Congress is "not a party, but merely the creature of the compact."

One implication of Jefferson's should be noted here. Don't miss this. If he is correct - and he certainly is - then deciding what is constitutional or not is not even a matter for the Supreme Court, since it too is a creature of the states. The states and the states alone have the moral and legal authority to decide when Congress has violated the Constitution, and have every moral and legal right to ignore Congress when it transgresses its proper boundaries.

If the states allow unconstitutional acts to stand, Jefferson writes, in essence they would be allowing Congress to "place any act they think proper on the list of crimes and punish it themselves whether enumerated or not enumerated by the Constitution." This would make the central government a government of "unlimited powers" and transform it from a servant into a tyrant.

No, said the good gentlemen of Kentucky in the words of Jefferson, "this commonwealth is determined...to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth."

It's time once again for every state in the Union to say "No" to tyranny and "Yes" to self-government. No less than six times, the Kentucky Resolutions loudly declare that any act of Congress which "assumes powers...not delegated by the Constitution, is not law, but is altogether void and of no force." Read those words again: "is not law, but is altogether void and of no force."

Each one of these declarations is like a fresh ringing of the Liberty Bell, celebrating liberation from tyranny and the rod of an oppressive central government. In Jefferson's eloquent words, we must once again "bind (Congress) down from mischief by the chains of the Constitution."

It's time for a second Independence Day. Let freedom ring.

The Kentucky Resolutions of 1798

 

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