Who Decides?

From The Tenth Amendment Center:

Who Decides?




by Steve Palmer, Pennsylvania Tenth Amendment Center



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.



As has been noted in the Texas Law Review, the Tenth Amendment is a rule of construction. This simple text conveys a great deal of information, telling us how to interpret the entirety of the Constitution.

One important question, covered extensively by Dr. Thomas E. Woods, Jr. in his book, Nullification, is the question of who gets to decide what the Constitution means? Conventional wisdom has it that the Supreme Court is the ultimate arbiter? Our own author, Andy Quesnelle, has also addressed this question here. This topic has also received extensive coverage elsewhere.



Many people who claim that the States also have the ability to interpret the Constitution for themselves argue from the perspective that it would be a conflict of interest for the federal government to have exclusive authority to exercise that power when it is also a contestant. Others focus on the fact that the Constitution was created by the states, so it is logically necessary that the states’ powers are superior to those of their creation, the federal government. In this essay, we will support those arguments with a third plank, what the Constitution actually says. It is ironic that most commentators I’ve read have not applied the Tenth Amendment to this question.



Using the knowledge that the Tenth Amendment is a rule of construction, we can use it to create a “four square” table of allowed and prohibited powers to graphically show how the powers and levels of government were intended to fit together. For each level of government, State and federal, there are exactly two possibilities: either that level of government is allowed to exercise a power or it is prohibited from exercising a power. Conveniently, there are no other possibilities, so our table can be simple. Any power that can be imagined can be populated into our four cell table.



Table 1: Allowed and Prohibited Powers



*assuming 14th amendment incorporation of the Bill of Rights



The red cell, containing powers which are allowed to the States, but prohibited to the federal government, is the domain of the Tenth Amendment. This particular table is necessarily incomplete, but it will suffice for today’s purpose. It could be extended to describe, in detail, all powers which are described by the Constitution.



The essential feature, for now, is that almost everything was intended to fall in the red, “U.S. Prohibited / State Allowed” quadrant of the table, “Everything else”. As Madison wrote, in Federalist #45,



“The powers delegated by the proposed Constitution to the federal government, are few and defined[Row 1]. Those which are to remain in the State governments are numerous and indefinite[Row 2, Column 1]. The former [Row 1] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States [Row 2, Column 1] will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. “



Having a table like this may make it easier for some people to reason about the Constitution. For example, a section of the Constitution which is often raised against the power of states to resist an unconstitutional law is the “supremacy clause”. In Article 6 of the Constitution, this clause says,

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.



“Main stream” thinkers often refer to this clause, claiming federal supremacy, to justify their opposition.



Let us examine that claim by using our table of allowed and prohibited powers to break down the first part of the supremacy clause and fit these objects into our table of powers.



1.This Constitution – includes all four quadrants of our table.

2.The Laws of the United States which shall be made in Pursuance thereof – Can only refer to the “U.S. Allowed” row of the table, since the Constitution itself fences off the “U.S. Prohibited” row.

3.“and all Treaties made, or which shall be made, under the Authority of the United States” – is even further focused in the “U.S. Allowed”, “State Prohibited” quadrant, where treaties are placed by the Constitution.

So the preeminent object of the supremacy clause must be, “This Constitution”, since it encompasses the more limited scopes of the following objects. If an ostensible Treaty or a Law of the United States falls in the 2nd row of the table, then “This Constitution” takes precedence and the treaty or law is invalid. To some, this might seem obvious, but the persistent and wide spread misunderstanding on this point makes it clear that we need to examine it in great detail in order to be able to persuade others.



If a purported U.S. Law is a usurpation, infringing on a fundamental right or legislating on a topic which has not been delegated to the United States, then it falls in the second row of our table. Therefore, the unconstitutional nature of the law overrides, and the supremacy clause says that the judges in every State must uphold the Constitution.



In short, when applying the Supremacy clause to legislation, it only applies to the balance of power between the federal government and a state if the power being exercised falls in the “U.S. Permitted & State Permitted” cell of the table. In that case, and only in that case, the constitution says the federal law is supreme.



Now, we get to the main question of this essay, “Who decides whether a law contradicts the Constitution”? The supremacy clause, the Tenth Amendment and our table of allowed and prohibited powers help us to answer this question.



First, with regards to the supremacy clause, note that the terminal portion of the supremacy clause does not limit its binding to federal judges. It says, “the Judges in every State”. Referring back to our table of powers, we see that the judicial power is a shared power. The State and federal governments are both allowed to exercise judicial power under the Constitution. The supremacy clause, therefore, tells us that state and federal judges are both bound by “this Constitution”, “the Laws of the United States which shall be made in pursuance thereof” and “all Treaties…”.



It should now be obvious that the supremacy clause allows, and in fact requires, both State and federal judges to evaluate whether laws are Constitutional.



Further, let us note that nowhere in the Constitution is the power to interpret the Constitution prohibited to the states. Since the power to interpret the Constitution is not prohibited to the states, if we apply the Tenth Amendment, this power can only be in the “State Allowed” column of our table. Either it is a shared power with the federal government or it is the sole province of the States. An argument can be made that this power is included in the judicial powers, and thus shared by both levels of government, but it is clear that there is no Constitutional claim that the states may not exercise this power.







The “main stream” understanding in our times continues to be that only the federal government, in the form of the Supreme Court, is entitled to declare a law to be unconstitutional. Many articles have been written describing the conflict of interest inherent in that viewpoint. Others have been written detailing historical objections. This article used logical arguments based on the Constitution itself to prove the fallacy of that idea.



There is nothing in the Constitution, including the supremacy clause, which prohibits States from interpreting the Constitution for themselves. In fact, the supremacy clause requires the federal and state judiciary to do just that.



Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.



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