By
Richard Arena

The Tea Party movement began when the silent majority finally found its voice (and feet) in 2009.  Millions of Americans across the width and breadth of the county marched to their town squares, state capitols and the Washington Mall to tell their elected representatives they had had enough of government exercising powers beyond the bounds of the Constitution.

How the federal government came to exercise powers prohibited is a long and oft times controversial tale. Following is a Readers Digest version along with a suggestion for what can be done about it – other than march on Washington every two hundred and twenty years.
The reason the federal government is out of control is primarily due to three factors:
1) Distracted by the good life following WWII, We the People we were pursuing personal happiness and not paying sufficient attention to the mission creep taking place at all levels of government.
2) In the early 20th Century the Supreme Court began rendering opinions based on what the majority of justices think the Constitution should say as opposed to what it actually does say. Thus, for example, the prohibition against government abridging the God-given Right of the people to freely express their political opinions and live by their religious beliefs is now subject to censure through the federal tax code.
3) The third and most critical factor is that the federal government does not recognize the right of the people or of their primary agents, the States to correct federal power abuses.  The federal government has thus transformed itself from the servant of the people to a master that professes it alone defines and therefore determines the limits of its own powers.

When the Supreme Court began incorporating the “equal protection” and “due process” clauses of the 14th Amendment to the States, e.g. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, and Gitlow v. People of the State of New York (1925), federalism was effectively unraveled because the federal government was thus positioned to judge the constitutionality of state laws and activities – including those reserved exclusively to the States.  Even more ominously, incorporation also positions federal courts to judge and direct virtually every activity of individual citizens.

On one hand it is perfectly rational and logical to expect that all levels of government should be required to protect the unalienable God-given Rights of the people and that some entity other than the States themselves might be needed to insure adherence at the state level.  The problem is there is no readily available independent remedy for the people or the States to correct federal transgressions – especially because all three federal branches are complicit in the assumption of powers not granted.

Since the federal government is the creation and agent of the people (through their States), and since the States reserved all powers not specifically delegated exclusively to the federal government to the States and the people, and since the States did not prohibit their own intervention in the event of federal abuse of powers, then it follows that the States (and the people) retain the Right to correct federal transgressions.  The question is:  how might that action routinely manifest – surely not through force of arms.

Madison, Jefferson and Hamilton contended that it was the right and duty of the States to nullify, i.e., render unenforceable, federal acts that are outside the bounds of the role prescribed to and proscribed from the federal government.  If you accept that premise, the next question is, do we follow Jefferson, who said each individual State has a right and duty to nullify unconstitutional acts of the federal government, or Madison who maintained that nullification was only rightful when done collectively by the States (see Madison’s 1835 Notes on Nullification).  I tend to agree with Madison.

This is one way that that might manifest.  When a super majority of the States agree that an act of the federal government is, to quote Madison, a “deliberate, palpable, and dangerous exercise of other powers not granted”, then the States issue a proclamation to that effect and direct the federal government to take corrective action.
Correcting deliberate federal disobedience of the Constitution cannot be achieved through an Article V convention because the Constitution provides that the only purpose for an Article V convention is to “propose amendments”, and of course, unless there is a means for the States to compel compliance, there is every reason to think the federal government will find ways to disregard new prohibitions. Joint State Corrective Constitutional Proclamations would reaffirm Federalism and restore the Rule-of-Law.