Editor’s Note: Here’s an article related to the book mentioned here, The Federal Government, Its True Nature and Character, Able Upshur, who had been Secretary of State and Secretary of the Navy. Also, here’s an interesting article on the Separation of Powers. Check out Morpheus Explains: What is a Person? Also, check out USA VS US. Also, states don’t have “rights.”
The Price of Liberty Since I began writing articles on the Constitution several years ago I have received numerous comments from readers across the country. While most of these comments have been interesting and thought provoking, more readers than I can count have made an assertion that has me perplexed.
They believe articles on the Constitution are no longer relevant because the Civil War altered the system of government established by the Constitution and vested the federal government with jurisdiction over issues that were previously under State control. In the author’s opinion, this assertion is just another urban myth because the Civil War did not alter the system of government established by the Constitution or divest the States of the power to control their federal government.
For those readers who believe the Civil War altered the Constitution and transferred power from the States to the federal government, consider the following:
1) The Constitution was a compact or contract between the individual States before the Civil War and it remained a compact or contract between the individuals States after the War.
2) The federal government was not a party to the constitutional compact between the several States before the Civil War and it did not become a party to that compact after the War.
3) The federal government was the agent of the States before the Civil War and it remained the agent of the States after the War.
4) The federal government did not have the power amend the Constitution before the Civil War and it did receive the power to amend the Constitution after the War.
5) All amendments to the Constitution had to be ratified by a vote of the States before the Civil War and by a vote of the States after the War.
6) The States had the constitutional authority to alter or abolish the powers of the federal government before the Civil War and they retained that power after the War.
7) The federal government did not have the constitutional authority to alter or abolish the powers of the States before the Civil War and did not gain that power after the War.
8) The federal government did not have the power to overturn a vote of the States on constitutional amendments before the Civil War and did not gain that power after the War.
9) The federal government was States’ government before the Civil War and it remained the States’ government after the Civil War.
Since all of the important powers of government vested in the States before the Civil War remained with the States after the War, the Civil War could not have altered the system of government established by the Constitution or stripped the States of the power to control their federal government.
While it is true the federal government is exercising powers not granted by the Constitution and encroaching on the sovereignty of the States, the underlying reasons for this state of affairs go much deeper than the Civil War. Abel Upshur, a judge from Virginia who served as Secretary of the Navy and Secretary of State predicted this would happen shortly before his death in 1844. In his classic work, “The Federal Government, Its True Nature and Character,” which was published in book form in 1868, Upshur wrote:
“I venture to predict that it [the federal government] will become absolute and irresponsible, precisely in proportion as the rights of the States shall cease to be respected, and their authority to interpose for the correction of federal abuses shall be denied and overthrown.
It should be the object of every patriot in the United States to encourage a high respect for the State governments. The people should be taught to regard them as their greatest interest, and as the first objects of their duty and affection. Maintained in their just rights and powers, they form the true balance-wheel, the only effectual check on federal encroachments.”
“The danger is, not that the States will interpose too often, but that they will rather submit to federal usurpations, than incur the risk of embarrassing that government, by any attempts to check and control it.”
This is precisely what has happened. Since modern Americans have not been educated on the true system of government established by the Constitution, they have never been taught that the States were suppose to control the federal government. The average American believes the Constitution consolidated the States into a single nation under the control of the federal government. They also believe the federal government is supreme and above the States. These erroneous beliefs make it extremely difficult for the States to step forward and attempt to control their federal government because constitutionally challenged Americans would voice their ignorance by calling it a rebellious act.
The statesmen envisioned by the Founders, who would maintain the balance of power between the States and their federal government have been replaced by politicians who have put the acquisition and retention of political power above the structure of government created by the Constitution. Since political parties have taken over the political process, the States have all but abandoned their duty of controlling federal usurpations of power. Many politicians at the state level have aspirations of federal grandeur. Thus, they are reluctant take any steps to block federal intrusions because they don’t want to obstruct their party’s political agenda.
In fact, political parties have been systematically dismantling the system of government created by the Constitution in order to control the States and their people through a national party apparatus. Over the years, party quislings have infiltrated the States and used the amendment process to remove several of the checks and balances that were incorporated into the Constitution to control the federal government.
Other than the amendment process, the States most powerful constitutional check on the exercise or abuse of federal power was the Senate. The Senate, as originally conceived, was appointed by the legislatures of the several States and represented their interests in Congress. No law could be passed without the consent of the States in the Senate. Thus, the States’ representatives could block any attempt by the House of Representatives to unconstitutionally expand federal power through the legislative process.
The Senate also confirms all federal judges. No judge could be appointed to the federal bench without the approval of the States in the Senate. The House of Representatives has no voice in this process. If the President nominated a judge who the States perceived as a threat to the Constitution, the States could vote to reject the nomination. Thus, the States held complete control over the federal judiciary.
With the adoption of the Seventeenth Amendment in 1913, political parties put an end to State control of the Senate. The States no longer have a voice in the government they created for their mutual welfare. Since the adoption of this Amendment, members of the Senate are elected directly by the people through an election process controlled exclusively by political parties. The Senate is now beholden to the people and political parties for their tenure in office. Thus, the States no longer have control of the branch of Congress that was to represent their interests and secure their sovereignty from federal usurpations of power.
Another, but little known safeguard incorporated into the Constitution was the process for electing the president. The president is elected by electors chosen in a manner prescribed by the legislatures of the several States. The importance of this process as a check on the federal government was discussed by Abel Upshur:
“So absolutely is the Federal Government dependent on the States for its existence at all times, that it may be absolutely dissolved, without the least violence, by the simple refusal of a part of the States to act. If, for example, a few States, having a majority of electoral votes, should refuse to appoint electors of President and Vice-President, there would be no constitutional Executive, and the whole machinery of government would stop.”
Political parties, acting in concert and the state and federal level removed the ability of the States to exercise this control over the federal government in 1933 with the adoption of the 20th Amendment. This Amendment grants Congress the power to appoint a president until a selection is made. However, if the States voted to abolish the Seventeenth Amendment and re-gain control of the Senate they could circumvent the 20th Amendment and block the election of the president.
This leaves the States with only one constitutionally enumerated method for controlling their federal government. That is the amendment process. Article V of the Constitution provides that two-thirds of the States  can request a Constitutional Convention. Congress is constitutionally bound by a vote of the States and cannot stop this process once the requisite number of States have voted for a Convention.
Under this process, when the States propose an amendment, it takes a vote of three-fourths of the States  to ratify any proposed change. Neither Congress nor a majority of the American people can amend the Constitution. Likewise, neither the federal government nor the whole people can override a three-fourths vote of the States. Thus, the States still have the exclusive power to control the federal government through the amendment process if they decide to act.
It is the failure of the States to exercise control over their federal government, not the Civil War, that’s responsible for federal usurpations of power. It is the failure of the States to exercise control over their federal government, not the Civil War, that’s responsible for the federal government exercising jurisdiction over issues that were constitutionally reserved to the States. This failure on the part of the States has resulted in the federal judiciary re-writing the Constitution from the bench and expanding federal power beyond the intent of the Founders.
Federal expansion of power can be traced, for the most part, to two clauses in the Constitution. One is the General Welfare Clause. This provision was judicially expanded to give Congress the power to tax and appropriate money to fund programs not within the scope of the powers delegated to the federal government. If this clause was returned to its original intent, all individual and Social Security taxes would disappear because Congress would be denied the power to fund all the domestic social programs made possible by these taxes.
The other provision is the Commerce Clause. This clause has been judicially expanded from a free trade provision into a clause that grants Congress the power to regulate every aspect of life within these United States. The federal government uses this clause to regulate everything from the food you eat to the toilet in your bathroom. It has also used this clause to create a federal criminal justice system not enumerated in the Constitution. If this clause was returned to its original intent, the majority of all federal criminal statutes would disappear along with almost every federal regulatory scheme.
The federal government has used these two clauses, not the Civil War, to transform itself into the all-powerful central form of government rejected by the Founders. If the States do not step forward and curb these unconstitutional expansions of power, then the federal government will continue to use these clauses to control the States and their people. The time is rapidly approaching for the States to make a decision. Either exercise your constitutional powers and regain control over your federal government or be reduced to mere geographical locations on a map. Unfortunately for the American people, political parties will probably force the States to choose the latter.
Note: There is another way for the States to regain control over their federal government. While this method is not specifically enumerated in the Constitution, it is within the constitutional powers of the States. The author views it as the most powerful and educational way for the States to exert their authority as the principals to the compact known as the Constitution for the United States. It will be discussed in an up-coming article and should, in the author’s opinion, be a core principle of movements like the “Free State Project.”