Federalist 17: How Times Are a-Changin’


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“It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State governments.” Alexander Hamilton, The Federalist Papers, No. 17.

Hello Everyone, Happy Friday.

This week, I jumped between topics on what to write about. Curious, I reopened The Federalist Papers because lately, I’ve been reading too much about numbers. I jumped to a marked page and it was Federalist No. 17. To my surprise, it was a perfect topic.

Our topic of discussion for today is a continuation, our third in this series, about Communism. Good, Sweet Ol’ Communism.

Communism, as we know it, was something our Founders never experienced—by name. Yet which the Founders lived through. It was simply called Tyranny back then. This was what the Founders sought to create a new nation against, with this new nation’s foundation laid upon principles antithetical to tyranny. To which they did accomplish this objective and did better than anyone else in the history of the world. 

Remember, We were given a Republic, if We can keep it.

However, it has been eroded since the very beginning. Ironically, by some of those who were followers of James Madison, one of the authors of the Papers. Marbury v. Madison, 5 U.S. 137 (1803), is one of the prevailing judicial decisions which has played a vast role in the erosion not only of the federal horizontal separation of powers but also of State’s rights. Thus, an erosion on individual rights—from the national government.

Oddly, as I read No. 17, those who helped advocate for our great nation’s Constitution never foresaw, or at least did not suspect, those in the federal government wanting to usurp certain powers from the State governments. That must be something recently in vogue in our nation’s history. One of the main reasons for the Tenth Amendment was to prevent such things from occurring. Regardless, back then, government wasn’t a business, or a career, and Hamilton wrote:

The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government.

(Emphasis Added). My oh my, how the times they are a changin’. At least Hamilton was correct in one important respect, the federal administration of State powers has been quite nugatory. 

The federal government and therefore, government in and of itself, does have its justifications and proper purposes. However, ever since the beginning of the 20th century, our federal government has taken on powers which were not conveyed to it explicitly in the Constitution. This is vitally important to which the public does not devote much time to. Though, with all going on, I have a feeling that will change.  

The power of the people and the States has been mainly usurped by nine unelected individuals throughout our history. When those in Congress and the Executive Branch tried to implement unconstitutional laws and policies, it was the job of the Court to strike the laws down, not fit a square peg through a circle hole. Yes, it is not solely the Court’s job to do this, but we elect officials who haven’t even read the Constitution. What are we to expect? 

This is also not to tarnish the necessary and proper functions of the Supreme Court of the United States. But all human institutions are flawed because they are made of flawed humans. Life is not perfect. 

Constitutional Erosion, or Constitutional Improvisation?

There is a constitutional interpretation out there, typically the only one taught in law schools, which is the “living constitution” interpretation. It is quite prevalent. The Constitution should “change with the times,” penumbras and emanations and things like that. The meaning of the words change, not the words. Sounds familiar.

The problem with this interpretation is there is already a mechanism to change the Constitution, so if people want to change it, then there is a way. Republicans have done it many times. The 13th, 14th, 15th Amendments. The 19th Amendment, too. The 19th was about a 34-year campaign, if I remember correctly.

The process to change our Constitution is difficult. That is the point. 

The Constitution is a contract between the federal government and the Sovereign States, and the States between themselves. States are made up of We the People. Our government is made up of these people, too. Thus, the Constitution is a contract between We the People and the people who make up Our federal government. They are called civil servants, for a reason. 

Our contract explicitly outlines We the People’s rights, liberties, and freedoms as United States Citizens. Most importantly, it outlines what the government cannot do. No illegal search and seizures. No cruel and unusual punishments. Who do these defend? 

Contracts have explicit meanings, clauses, terms and conditions. It is, to me, an illogical argument to put forth that the “spirit” of the words and contract should hold power over what the contract actually says. If you were sued and someone was arguing narrative over fact and won, something tells me happiness wouldn’t be on your mind. I would not be pleased. This latter argument is essentially constitutional originalism, logic over emotion. Feel free to decide which sounds more logical.

The easy way to do something isn’t always the best path.

The living constitutional “interpretation” allows unelected judges to take explicitly written words in a contract and twist the common meanings to fit the conclusion to which they are looking for. Or they write an opinion citing something in the Constitution that conveys a right which is explicitly not there. It’s great when it works your way. Not so great when it doesn’t. That’s the point of having explicit laws that should be followed and interpreted by the explicit words so that outcomes follow to their logical conclusions and there is certainty under the law. Logical conclusions, i.e. laws, written by those We elect.

That’s what the Rule of Law is and how we get to equal treatment under the law, guaranteed under the Fourteenth Amendment. The other side is the Rule of Men, I.e. arbitrary rule—tyranny.

We have the right to keep and bear arms, i.e. all types of weapons because this right “shall not be infringed.” District of Columbia v. Heller, 554 U.S. 570. Let me tell you what right is not in the Constitution (there’s a lot claimed in there that do not exist): medical care. I.e., someone else’s labor. Well, there are taxes, though.

While I am at it, Stare Decisis makes no sense, in my opinion. If the holding is wrong, precedent should mean nothing. The ultimate precedent is the Constitution itself. That’s where everything stems from, and all power of the federal government, under the Supremacy Clause. Have you read the opinion written for Dred Scott v. Sanford, 60 U.S. 393 (1857)? (Decided 7-2. 7 Democrats. 2 Republicans.)

It’s an abhorrent decision. For argument sake, however, if there was another case following which kept the same ruling “because precedent,” there would not be much favor for stare decisis I feel, especially today.

I digress. The reason the federal usurpation of State power relates to communism is it takes the power away from the many and gives it to a few. There would be no point to have fifty states if one government has all the power. Which, the outcome is not inevitable, or the direction, I guess is more proper to state. However, actions have consequences, and so do inactions. An object in motion stays in motion unless met by an equal or overwhelming force in the opposite direction.

There are a plethora of Court opinions, some already stated here, and my other columns, which led to grotesque and inhumane decisions, which followed the living interpretation, which might as well be called an opinion interpretation. The decision in Dred Scott stated black people were property. The Constitution doesn’t state anything remotely close to what this decision rested on. 

Korematsu v. United States was interpreted quite the same. Wickard v. Filburn was a gross expansion of Commerce Clause powers which stated the federal government could regulate intrastate trade and limit a farmer from growing crops above quotas—which the crops were for him and his family. Nice. NFIB v. Sebelius is quite the circus-like case that is the gift that keeps on giving Obamacare, thanks to C.J. Roberts. Thanks Bush.

The list goes on and the cases expand the federal government into every scope of our lives, and thus encroach upon our freedom and liberties. The Heritage Foundation, Cato Institute, and others do amazing work tracking current cases and the effects. I highly encourage them both. 

Also, The PATRIOT ACT for goodness sakes. That’s what happens when you let elected officials take advantage of your fear, or a fearful situation. 

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” – Benjamin Franklin. A good quote to remember as we find ourselves heading towards November 3, 2020, and potentially two more Supreme Court vacancies. And Our rights.

A revolution does not happen overnight. And a silent one is only silent if we let them sneak by us. But let’s be real, they’re not being silent. Nor peaceful. They are being, sort of, like slick trial lawyers. Convincing with narrative, not facts. OJ Simpson style. Oh and like the Black Shirts. 

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