The function of the U.S Constitution is to define and limit the powers of the Federal Government. The Constitution derived its validity by its ratification by the respective States and sustains its validity by the consent of the people in their respective states. The powers of the Federal Government are limited to those specifically enumerated in Article 1 Section 8 of the Constitution. In addition to Article 1 Section 8, the Tenth Amendment was meant as a final reinforcement and written guarantee that the powers of the Federal Government would indeed be limited to those enumerated in the Constitution. All other powers were to be retained by the States and their people. This was a safeguard against Federal infringement of rights and powers retained by the States and their people, and the tyranny, despotism, and abuses, which have often evolved from unchecked centralized power.
Here is the wording of the 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.”
Thus the executive, legislative, and judicial branches of the Federal Government have only those powers and those powers alone that are delegated to them by the Constitution. All other powers are reserved to the States or the people and are thereby prohibited to the Federal Government except by amendment to the Constitution, which would require not only the approval by two-thirds of both houses of Congress but also by three-fourths of the States.
It is important to note here that the people of the States do not derive their rights from the federal judiciary, nor have they by any means delegated that power to federal judges. The people of the States have reserved the power to determine their unalienable rights to themselves. The Tenth Amendment thus cannot be left to the Federal Government and its courts to ignore or interpret for themselves. A defining characteristic of a constitutional government is that power must not be allowed to define its own limits. Power must be checked and restrained by an equal or greater power.
The people’s liberty will never be safe if we depend upon the judiciary alone to protect us. Congress and the States must continually insist that federal judges abide by the Constitution.
There are also strong historical and Christian precedents in the tradition of British and American government going all the way back to the Magna Carta in England in 1215 that call for “interposition” of civil magistrates against unlawful decrees and usurpations by rulers. This approach was endorsed by religious leaders John Calvin, John Knox, Samuel Rutherford, and many others in the 16th century and provided much of the rationale for the American Revolution and governmental forms of the American Republic thereafter. An elected official, therefore, who swears allegiance to the Constitution, bears the duty of interposition against unlawful decrees and usurpations, including those perpetrated by judges. Otherwise, the people and the States could have no recourse against judicial arrogance, corruption, and perversions of justice.
The Kentucky Resolution of 1798, the work of Thomas Jefferson, asserts these doctrines in very strong terms:
“This Commonwealth is determined to submit to no undelegated and consequently unlimited power, in no man, or body of men on earth, even the President…When powers are assumed which have not been delegated, a nullification of the act is the rightful remedy; and every state has a natural right in cases not within the compact…to nullify of their own authority all assumptions of power by others within their limits…In the questions of power then, let there be no more heard of confidence in man; but bind him down from mischief by the chains of the constitution.”
No states disagreed. The “Principles of 98” were the principles of the Constitution and Bill of Rights.
Failure to honor and enforce the Tenth Amendment by the Judiciary, Congress, the States, and the people has spawned ever-escalating abuses of power, social nonsense, and political chaos. In its misguided and unconstitutional zeal to impose a liberal and godless social agenda on the American people, the Federal Judiciary has overstepped its powers so often that judicial tyranny is now accepted and defended as “The Rule of Law.” There is an enormous difference, however, between the true Rule of Law, which in the U.S. is constitutionally based, and the rule of judges legislating their own agenda. Federal judges who flout the Tenth Amendment, distort the First Amendment beyond recognition, and create federal powers not enumerated in the Constitution are not upholding the Rule of Law. They are destroying law and have become tyrants.
The American people have been lulled into complacent surrender of the principles we inherited as a constitutional and federal republic. The majority of our elected officials do not seem to possess the political and moral courage to defend our Republic and our rights. Who then will defend them?
Federal judges who give decrees that overstep their constitutional jurisdiction are acting unlawfully. It is thus the duty of other civil magistrates to say, “No, this must be contested.” The very essence of preventing tyranny in a republic is that power must not be able to define its own limits. The federal judiciary must be kept in check by Congress and the States. In the States, this check must often be exercised by lower level civil magistrates. The horizontal separation of powers in the Constitution between the executive, legislative, and judicial branches is well known. What are less known but tremendously important are the vertical separation of powers between the federal and state governments and the duty of interposition by all civil magistrates, especially those elected by the people.
This is why States Rights and Interposition by civil magistrates are so important. It is the people’s last bulwark against executive, congressional, and judicial tyranny. Meanwhile in Rowan County, Kentucky, God may use the humble to shame the proud.