WE, THE PEOPLE
The question of Constitutional authority should always be read in light of a correct understanding of the source of it’s power and authority. Both of which, in terms of civil government in human society, ultimately come from the people themselves. As George Mason, a Father of the Bill of Rights, wisely stated:
“In all our associations; in all our agreements let us never lose sight of this fundamental maxim– that all power was originally lodged in, and consequently is derived from, the people. We should wear it as a breastplate, and buckle it on as our armour.”
In this sense, the term “We, the people” has applicability, as well as accuracy in terms of a general understanding. In fact, the people, themselves, should be seen as, not only the primary or foundational branch (or even, perhaps, root) of government – but also as the highest court and authority when it comes to constitutional matters. It is truly from individual rights and authority from which any justifiable government action is derived; and the power of the state is ultimately dependent on the collective will, whether directly or indirectly, of “the people”.
Yet, in terms of the nature of the union of States, it is not enough to stop there. Accuracy demands more analysis than what seems to have become merely a platitude.
The question in regards to the US Constitution now becomes, Who’s document is it? This question may seem like mere metaphor given the 227 years of separation between ourselves and the Convention itself, yet the implications of even the attempt to answer will illustrate more about the Union than too few care to realize. Before moving on to the question of who may authoritatively interpret the US Constitution, we must first accurately answer that question.
The US Constitution is not a document directly accountable to the people, but indirectly accountable to them via the participating State governmental systems themselves. It is a compact between the states, and thus, it is more accurately seen, not as a compact of “We, the People” – but of “We”, the participating states, in an attempt to better serve the people of ALL of the participating states, generally. (By the way, this is the correct angle by which the terms “common defense” and “general welfare” is to be interpreted).
As an aside, even the question of federal power, in spite of state power, should be seen as a matter of morally bankrupt acquiescence on the part of the States – and a failure of their duty to keep their “creature”, the Federal State, a servant to themselves in the quest for better serving the people, rather than one of aiding some federal Frankenstein in their seeming quest for domination.
Do the state officials honestly believe that the US Constitution, as a piece of paper, will enforce itself? And do they conveniently not see their duty to enforce the compact that they claim as their own? The states created the federal government via the US Constitution – and hopefully, by now, more people are beginning to see the folly in allowing the federal state to have, as a result of state acquiescence, essentially monopoly power of interpretation of the document that created it. Within the context of the US Constitution itself, wouldn’t the concept of “checks and balances” mean hardly anything to a state that is able to determine the extent of it’s own power?
Thomas Jefferson, writing to William Branch Giles, in December 1825, wrote concerning these issues as, at the time, a seemingly new reality in the American system of governments:
“I see, as do you, and with the deepest affliction, the rapid strides with which the federal branch of our government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all power, foreign and domestic; and that, too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the federal court, the doctrines of the President, and the misconstructions of the constitutional compact acted on by the legislature of the federal branch, and it is but too evident, that the three ruling branches of that department are in combination to strip their colleagues, the state authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.” (Writings of Thomas Jefferson, pp. 1509-1510)
Thomas Jefferson even coined the term nullification, or what is, basically, the refusal of a state to allow enforcement of a federal statute within it’s jurisdiction, or to participate in the enforcement of the same. He anonymously authored resolutions for the state of Kentucky, which they adopted as an act of state resistance to federal tyranny (as they perceived it) – in this case, specifically, the Alien and Sedition Acts.
What is, perhaps, more well known is the existence of these resolutions as it pertains to historical fact; and yet, perhaps, what is less known are some of the basic arguments themselves behind what he perceived as fundamental in terms of where the interpretive authority lies within the federal system. The reasoning that Jefferson promoted strikes at the heart of the issue at hand and is worthy of partial quotation.
In The Kentucky Resolutions of 1798 , Jefferson anonymously wrote, in part, that:
“the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
Thus, as the US Constitution is a compact of the states themselves, it is logical to conclude that the States have interpretive authority of their own document. This should not be seen as somehow in spite of the people. It is true, that the state interpretations and actions should be in harmony with a correct understanding of the rights and freedoms of the people within their jurisdiction. Ultimately, the people themselves are the real sources of authority and power upon which even the state governmental mechanisms rest. Yet, that being said, the pertinent issue is a matter of jurisdiction, more localized self-government and determination, and thus, the logical train rests on the concept behind the following line: that whatever authority the state institutions may have is, in principle, superior to that of the federal instruments, which were originally designed to aid the states in the ultimate goal and end of all good government; that of protecting the rights and freedom of the people.
For those who may oversimplify and argue that, in terms of constitutional interpretation, the Supreme Court has the final say – the question could be asked: What is the highest court in the land? If they answer “Obviously,The Supreme Court” (or something similar), perhaps, that would be a good opportunity to both apply the concept of federalism to our own understanding, as well as to promote it by simply asking: “Which one?” There are 51 of them across the united States – one per state, as well as the Supreme Court, at the federal level, of the united States themselves. (And that is not even including the peoples of the states themselves, as a “high court” of sorts.)
WHAT ABOUT WITHIN THE FEDERAL STRUCTURE ITSELF?
Obviously, the issue of constitutional interpretation is applicable to all three federal branches (excluding for purposes of this article, the apparent administrative branch as a de facto fourth branch) as it pertains to their sphere of duties operating in various offices created by, and under, the US Constitution. Obviously, for example, passing bills in Congress would involve, inherently, a constitutional interpretation as to the nature of their Constitutional authority and power to do so. Thus, every officer has a part in the overall interpretation of the Constitution, both as to their particular position within the structure, and as to the other positions, especially when it overlaps with and/or effects their own.
Yet, it should be noted that when it comes to “controversies” and disputes “arising under this Constitution, the Laws of the Unites States, and Treaties made, or which shall be made, under their Authority“, and, therefore, even over constitutional issues – there arises a Constitutional allocation of authority to rule and opine, and thus, resolve those disputes in the federal court system, including most especially: the Supreme Court of the United States. (see Article Three, Sections 1-2, US Constitution)
As an example of this, just as the US Constitution gives the Congress the tool of legislation, the Executive the tool of signing and vetoing, the federal courts have the power (the tool) of ruling on issues arising under, or involving, the use of those very tools by the other branches.
For those people prone to overreaction and oversimplification, who seemingly have as their agenda the goal of making the Supreme Court as insignificant as possible (and often, ironically, in the name of “the Constitution”, “the founders”, and “original intent”) – it is recommended that you read and analyze the arguments put forward in The Federalist No. 78 by Alexander Hamilton. He wrote that essay, among many others, in an attempt to gain popular support for the US Constitution among the people of New York – which would imply, on one level, “original intent”, would it not?
After clearly elucidating the doctrine of Judicial Review (which many falsely believe was an invention of the court in Marbury v. Madison), in which the Supreme Court may and should strike down statute that is inconsistent with the US Constitution, Hamilton states that: “this conclusion [does not] by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”