State Officials Have the Power and Responsibility to Protect the Rights of Their Citizens
J. Kennerly Davis, Jr.
Officials in state government – legislators, governors, and judges alike – are obligated as citizens and their oath of office to actively employ the full range of official powers to faithfully and lawfully uphold the principles and institutions of our constitutional system of government and defend the citizens of their respective states against any harm that may result from unlawful actions taken by the federal government or the government of any state.
A Sovereign People
In any functioning system of government, supreme authority, that is, sovereignty, must be located somewhere in the system. For most of recorded history, in most places, sovereignty has been situated in the Ruler: the king, queen, emperor, warlord, tribal chief, military commander, or ruling party chairman. There must be some person or persons with ultimate authority over the government’s actions. There must be some person or persons to whom all others must answer and be held accountable.
In such a system of government, wherein the ruler is sovereign, the rights of individuals are nothing more than the malleable artifacts of the ruler. Their scope, substance, and tenure entirely depend upon the ruler’s changeable determinations and dispensations. The economic and social status of persons, their liberty, and their very lives are contingent upon their relationship with the ruler and whether they are favored or disfavored at a given time.
In a system like this, the institutions are established and designed to legitimate and facilitate the determinations of the ruler, which may change from time to time. Authority is concentrated, and government functions are consolidated in the ruler as the chief executive who sits atop a largely fixed hierarchy. The ruler’s underlings and the rest of the people are confined below as subjects; all swept along in the collective pursuit of the ruler’s objectives. The ruler is the center of things, and everything is designed to protect his person, power, and prerogatives.
In 1776, our Founders turned the ages-old concept of state sovereignty and the authoritarian relationship of the rule to the people upside down. In Philadelphia, on the Fourth of July, for the first time in history, a new nation was founded on the proposition that the people themselves are sovereign; for the first time in history.
The Founders held that all people are created by Nature’s God, possessing in equal measure certain natural rights that, taken together, entitle each person to lead life and pursue the happiness of his choosing, free from state tyranny and limited only by the need to respect the right of others to do the same. The rights of the people are unalienable, that is, inseparable from their shared sacred humanity. The people’s rights exist in them because they exist as individuals. The ruler does not create their rights; they do not depend on the government’s generosity. They come from the hand of God and pre-exist both the ruler and the government.
The Founders explained that the purpose of the government they created – in fact, the only rightful purpose of any government – is to recognize, respect, and protect the pre-existing natural rights of the people. Faithful adherence to this purpose is the essential precondition of the government’s legitimacy and the people’s consent to its rule. Suppose the government fails to fulfill its legitimizing purpose faithfully. In that case, the sovereign people have an inherent right to alter or even abolish the institutions of government they created and replace them with new institutions better suited to the fundamental purpose. It is all there in the second paragraph of the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Self-styled “progressives” and other leftists have always been hostile to the idea of unalienable natural rights because of the limitations the concept imposes on government power. They seek to obscure the timeless significance of the Declaration of Independence, mischaracterizing it as nothing more than a political broadside written for the moment, a laundry list of contemporary grievances against the British King.
Woodrow Wilson’s hostility to the idea of unalienable natural rights was such that he argued people should ignore the second paragraph whenever the Declaration was studied or discussed. As he saw things, “The Declaration of Independence did not mention the questions of our day. It is of no consequence to us” (1912 speech: What is Progress?).
The significance of the Declaration of Independence is fundamental. It is the heart and soul of the American idea and the foundation of a government of the people, by the people, and for the people. It defines the American polity. It sets forth the reason we founded our nation in 1776 and the guiding principle for all we hope to accomplish together as a free people.
The Declaration of Independence is the bedrock of our entire constitutional system of law, a system through which the people rule. Far more than a political broadside, the Declaration is our first law. The Declaration appears on Page 1 of Volume 1 of the U.S. Statutes at Large. It is at the head of the United States Code under the caption “The Organic Laws of the United States.”
Instituting Governments to Secure The Natural Rights of A Sovereign People
In accordance with our Declaration of Independence, we exercised our sovereignty to institute our first form of government in 1777 when representatives of all thirteen states signed into effect the Articles of Confederation to “enter into a firm league of friendship with each other, for…the security of their liberties” (Article III).
During and immediately after the Revolutionary War, it became increasingly apparent that, for various reasons, the form of government instituted by the Articles of Confederation was insufficiently vigorous to protect the national interests of the United States and the rights of its citizens effectively.
In 1787, our Founders met again in Philadelphia. There they framed a constitution that, in its structure and substance, reaffirmed the Declaration by establishing a federal government based on the delegated authority of a sovereign people. This government possesses only those powers that are specifically enumerated and carefully allocated to one of its three separate branches.
Professional architects like to say that form follows function; that is, the form of a structure follows the functional purpose of the structure. The Founders’ purpose in 1787 was to structure a constitution that would improve upon the Articles of Confederation and more effectively secure the natural rights affirmed in the Declaration.
The Preamble of the Constitution declares that “We the People of the United States,” a sovereign people acting through their representatives, “in Order to form a more perfect Union…and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.”
The Founders were too honest and humble to claim that they were establishing a perfect union of the states. They simply hoped to be establishing a government that was better than the one they were replacing. In doing so, they were exercising the sovereign right of the people to abolish the existing form of government and replace it with a new government, laying its foundations on the principles of the Declaration and organizing its powers in such structural form as to them seemed most likely to effect their safety and happiness.
A Federal Structure for Government
The Founders structured the Constitution in two ways designed to create a more capable national government powerful enough to effectively protect the people’s natural rights but not so powerful as to threaten those rights. First, they separated and allocated powers vertically among the national government and the states by creating a federal system under the Constitution. Second, they separated and allocated powers horizontally among the three branches of the national government.
The form of government instituted by means of the Articles of Confederation lacked the powers needed to deal with national problems effectively as one united nation. Congress lacked the power to regulate foreign and interstate commerce and foreign affairs. The central government could not collect taxes to fund its operation. There was no executive branch to carry out and enforce the enactments of Congress, no national court system, and no common currency.
To address these inadequacies while avoiding a concentration of central power that could threaten the states and the rights of their citizens, the Framers structured the Constitution to create a federal system of government under which specifically enumerated limited powers were delegated by a sovereign people to the central government sufficient for it to deal with the matters, such as taxation and foreign affairs, that the confederacy could not deal with. The states and their citizens retained full authority over all other matters, including those related to civil liberties and the rights of property, the internal affairs of the states, and the administration of law and order. As Madison explained:
The powers delegated by the proposed Constitution to the [central] Federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite …The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State. (Federalist No. 45. See also Federalist Nos. 32,39, and 36)
This federal reservation of extensive residual power by the states “forms a barrier against the enterprises of ambition [in the central government] more insurmountable than any which a simple government of any form can admit of” (Federalist No. 46). In our federal system, every person is a citizen both of the state in which he resides and of the nation as a whole (See Amendment XIV, Section 1). The law of both the central government and the person’s state operate directly on the individual.
The Separation of Central Powers
By Article I, we the people vest all legislative powers granted by the Constitution in Congress, an openly political legislature accountable to the people, authorized to enact new rules for general application prospectively. By Article II, we vest the executive power in the person of the President, and we charge that individual with the task of making sure that the rules enacted by Congress are faithfully carried out. The President, like the members of Congress, is also politically accountable. By Article III, we vest the judicial power in individuals who are insulated from political pressure, and we charge them with the job of applying the rules enacted by Congress to resolve disputes involving events that occur after the rules are enacted.
Thus, the Constitution is structured horizontally to establish three separate and distinct branches in the federal government, each with different decision makers with different functional responsibilities. All this was by careful design; the elected representatives of the people adapt the law to changing circumstances, a vigorous accountable single executive to faithfully carry out the legislative enactments of the people’s representatives, and neutral judicial decision-makers to resolve cases and controversies by applying the law as enacted by the people’s representatives.
The structure of each state’s constitution follows the U. S. Constitution. The powers of each state government, like those of the national government, are separated and allocated among the legislature, executive, and judiciary.
The Founders considered the separation of government powers to be an essential safeguard for the protection of freedom. They were well-read students of history. They had suffered personally under an oppressive king. They were keenly aware that consolidated unbounded power always led to tyranny. As James Madison wrote, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny” (Federalist Papers, No. 47).
Madison explained how this compound allocation of government power, both vertical and horizontal, is designed to work together to protect the natural rights of a sovereign people:
In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivision among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself. (Federalist No. 51)
By the structure of the Constitution, therefore, the Framers sought to create a system of government of enumerated powers and separate branches that was powerful enough to protect the natural rights of the sovereign people but not so powerful as to threaten those rights through the exercise of unrestrained power.
Textual Confirmation of Popular Sovereignty
In the text of the Constitution, including the Bill of Rights ratified in 1791, the Founders emphasized the sovereignty of the people, their natural rights, and the limited nature of their delegation of authority to the new federal government.
Article V, for example, sets forth the procedures for exercising our rights as sovereign people, which the Declaration of Independence affirms. The people, acting through elected representatives, alter by amendment our constitutional form of government in ways that seem to affect our safety and happiness.
The Bill of Rights, Amendment IX states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And Amendment X states that “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.”
The Interrelationship of the Declaration and Constitution
Taken together, the text, original meaning, and structure of the Declaration and Constitution are clear. The end of government, stated in the Declaration of Independence, is the enjoyment by each and all of a sovereign people of their natural, unalienable rights. The means to that end, found in the structure and text of the Constitution, is a system of law-limited government designed to respectfully recognize and effectively protect the natural, unalienable rights of a sovereign people. The two documents are inseparable. The consequence of each can only be fully appreciated when considered together with the other.
No one has understood and explained the interrelationship of the principles of the Declaration and the purpose of the Constitution more clearly than Abraham Lincoln (See: Jaffa, Crisis of the House Divided (The University of Chicago Press, 2009)). In notes possibly composed while writing his First Inaugural Address, he draws upon the King James translation of Proverbs 25:11 – “A word fitly spoken is like apples of gold in pictures of silver” – to describe the relationship and how the two documents combined to create the United States.
All this is not the result of accident. It has a philosophical cause. Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something is the principle of “Liberty to all” …. The expression of that principle, in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence from Great Britain; but without it, we could not, I think, have secured our free government …. The assertion of that principle, at that time, was the word, “fitly spoken” which has proved an “apple of gold” to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple – not the apple for the picture. So let us act, that neither picture, or apple shall ever be blurred, or bruised or broken. That we may so act, we must study, and understand the points of danger. (A. Lincoln, “Fragment on the Constitution and Union,” c. Jan, 1861)
The Responsibilities of Sovereign Citizenship
In 1787, when asked about the results of the constitutional convention, Benjamin Franklin reportedly told a group of citizens that Americans had “a Republic if you can keep it.” As sovereign citizens, we have the authority, and the consequent responsibility, to do everything within our authority to keep our Republic, preserve its principles and institutions, and ensure they are never blurred or bruised or broken.
For any system of self-government to function effectively, the sovereign people participating in the system have to be committed to its animating principles and well-informed about the design and intended operation of its institutions. As Jefferson noted, “…the people are the only safe depositories of their liberty, and…they are not safe unless enlightened….” (Letter to Littleton Waller Tazewell, 1805).
Therefore, it is incumbent upon every one of us, as sovereign citizens, to take the steps necessary to renew our commitment to the founding principles of our Republic and to inform ourselves fully about the design and intended operation of its constitutional institutions. Thus equipped, we can defend our liberty and fulfill our citizen responsibilities. We can actively and effectively engage in the civic and political life of our communities, states, and nation. We can ascertain the governing philosophies of our public officials and vigorously support those who are committed to keeping our Republic. At the same time, we work diligently to remove those who are not so committed from office.
The Responsibilities of Citizens Who Are Public Officials
Public officials, privileged to be authorized to wield the power of government, have a special responsibility, in addition to those they have as citizens, to do everything they can consistent with their lawful authority to keep our Republic by preserving, protecting, and defending the principles and institutions of our constitutional government. Indeed, they have taken an oath to do so.
During the American Revolution, General Washington required all the officers under his command to formally renounce any allegiance to King George III and to take an oath of allegiance to the United States (See, General George Washington, “Proclamation Concerning Persons Swearing British Allegiance,” January 25, 1777).
The Articles of Confederation contained no required oath of allegiance to the United States. However, at the Constitutional Convention in 1787, the Framers did include oath requirements in the new Constitution, setting those forth in Article II, Section 1, Clause 7 for the President, and in Article VI, Clause 3 – the “Oaths Clause” — for other officials of the national and state governments. The Oaths Clause requires that:
The Senators and Representatives…and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution….
The Framers included these oath requirements in Article VI as a part of their overall plan to integrate the states into the newly constructed and carefully balanced federal union under which certain enumerated powers were delegated to the national government and all other powers were reserved to the states and their citizens. As Hamilton explained, by the Oaths Clause, “the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government, as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws” (Federalist No. 27, emphasis in the original).
The Article VI requirement for sworn oaths to support the Constitution has enormous significance in our constitutional system. The Oaths Clause lies at the heart of John Marshall’s opinion in Marbury v. Madison, which established the principle of judicial review and the power of courts to strike down laws they find to violate the Constitution, the fundamental law of the nation. Marshall argued that the responsibility of judges to overturn unconstitutional acts of government officials is a necessary consequence of their sworn oath to uphold the Constitution. Concluding his opinion in Marbury, Marshall pointed out:
This oath [required by Article VI] certainly applies, in an especial manner, to…[judges’] …conduct in their official characters….Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. (Marbury v. Madison, 5 U.S. 137, 180 (1803)
As important as it is for the principle of judicial review, the true significance of the Oaths Clause is much greater. By its clear text and the universally accepted logic of Marbury, the significance of the Oaths Clause extends throughout our federal system. Our fundamental law, it obligates the sworn officials in each branch and both levels of government to lawfully perform the duties of their offices so as to fully and faithfully support, without qualification, the Constitution of the United States. Article II, Section 1, Clause 7 imposes the same obligation on the President.
As Marshall established in Marbury, the judicial branch has an important role to play in interpreting the Constitution and countering actions of the government that violate the Constitution and threaten the unalienable rights that the Constitution was enacted to protect. But judges are not the exclusive interpreters of constitutionality. To fulfill their oaths of office, the members of Congress and the President also have important roles to play.
For example, the members of Congress have an oath-based duty to evaluate proposed legislation and to use the powers lawfully accorded them to defeat any and all legislation they determine to be unconstitutional, regardless of the merits of the policy advanced by the unconstitutional proposal. The President has an oath-based duty to evaluate the legislation presented to him for signature and to veto legislation he determines to be unconstitutional. The President also has an oath-based duty to ensure that the regulations drawn up by executive branch regulatory agencies do not violate the Constitution or applicable enabling statutes.
The Special Responsibilities of State Officials
The constitutions of all fifty states use similar language to reaffirm the founding principles of the Declaration of Independence, and all follow the three-branch institutional structure of the U.S. Constitution. They include a declaration of rights, and they recognize that all political power is inherent in the people and that government is established on the people’s authority and to protect their individual unalienable rights. For example:
All men are by nature equally free and independent and have certain inherent rights, of which…they cannot, by any compact, deprive or divest their posterity; namely the enjoyment of life and liberty…and pursuing happiness…. (Virginia Constitution, Article I, Section 1; Bill of Rights) All power is vested in, and consequently derived from, the people… magistrates are their trustees and servants, and at all times amenable to them. (Id., Article I, Section 2; Bill of Rights) All political power is inherent in the people, and all free governments founded on their authority and instituted for their benefit. The people of Texas…have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient. (Texas Constitution, Article I, Section 2, Bill of Rights) All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights. (Arizona Constitution, Article II, Section 2, Declaration of Rights) The enumeration in this Constitution of certain rights shall not be construed to deny others retained by the people. (Id., Article II, Section 33)
Within the several states, the oaths required of sworn officials explicitly obligate them to uphold the U.S. Constitution as required by its Oaths Clause and the constitution and laws of their respective states. For example:
I, [____], do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge the duties incumbent upon me as [____], according to the best of my ability (so help me God). Virginia Constitution, Article II, Section 7 I, [____], do solemnly swear (or affirm), that I will faithfully execute the duties of the office of [____] of the state of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God. (Texas Constitution, Article XVI, Section 1) I, [____], do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Arizona, that I will bear true faith and allegiance to the same and defend them against all enemies foreign and domestic, and that I will faithfully and impartially discharge the duties of my office according to the best of my ability, so help me God (or so I do affirm). (Arizona Revised Statutes, Section 38-231)
The Significance of the State Oaths of Office
To determine the meaning and significance of a part of the text of any legal instrument correctly, from a constitution to a statute to a contract or will, it is essential that the words comprising the text in question “be understood in their ordinary everyday meanings” unless there is a compelling reason to do otherwise and to never lose sight of the fact that “the text [of the entire instrument] must be construed as a whole” (Scalia & Garner, Reading Law: The Interpretation of Legal Texts, at 69 – 77, 167 – 169 (Thompson/West, 2012)).
These canons of textual interpretation are long established and universally accepted. For example, as Chancellor Kent noted, “The words of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense” (James Kent, Commentaries on American Law 423 (1826)). And as Sir Edward Coke explained regarding the importance of considering the whole instrument, “[I]t is the most natural and genuine exposition of a statute to construe one part…by another part…for that best expresseth the meaning of the makers” (Edward Coke, The First Part of the Institutes of the Laws of England, Section 728, at 381a (1628).
If these long-established and universally accepted canons of interpretation are applied to the representative oaths of office for Virginia, Texas, and Arizona, the full meaning and significance of all such state oaths becomes clear. For example, the ordinary meanings of “support” include: enabling to function, stand up for, and throw one’s weight behind. The ordinary meanings of “defend” include: protect, preserve, and secure. The ordinary meanings of the phrase “to the best of my ability” include: as well as you possibly can and to the limit of your skills, resources, and energy.
Construed as a part of their respective state constitutions and statutes, the oaths of the several states clearly obligate their sworn officials not only to avoid taking any actions that are unconstitutional or otherwise unlawful but, in addition, to take action and do everything they possibly can as legislators, governors, or judges to vigorously employ the full range of their respective powers of office to enable our constitutional system to function effectively as the Framers intended and to protect the constitutionally recognized unalienable rights of their citizens against any harm that may result from the unconstitutional or otherwise unlawful actions of the central government or the government of any state.
In the federal system of government they established, the Framers clearly expected the states and their officials to play a fully engaged and active role in upholding the constitutional order and protecting the rights of their citizens. As Madison explained, “[B]ound by oath or affirmation…[t]he members and officers of the state governments…will have an essential agency in giving effect to the federal constitution” (Federalist No. 44). With the states possessing reserved powers that are “numerous and indefinite…[and]…extend to all the objects, which…concern the lives, liberties, and properties of the people…the existence of subordinate governments…forms a barrier against the enterprises of ambition….” (Federalist Nos. 45 & 46).
Interpretive Guidance for All Public Officials
In a federal system of government, with limited enumerated powers delegated to the central government and numerous and indefinite powers reserved by the states, there needs to be some mechanism to resolve conflicts of law between the central government and the states and thereby help public officials fulfill their oaths of office and lawfully discharge their duties.
The Framers provided just such a mechanism in the Constitution in Clause 2 of Article VI, immediately adjacent to the Oaths Clause. Clause 2 states that:
This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (Emphasis added)
This Clause 2, commonly and somewhat misleadingly referred to as the Supremacy Clause, is simply a straightforward conflict-of-law rule designed to resolve conflicts of state and federal law touching on the same subject.
The Supremacy Clause does not delegate any power to the federal government. Other sections of the Constitution do that. It simply deals with resolving a conflict between the federal and state governments once federal power has been validly exercised. It changes nothing about the constitutional allocation of powers between the federal and state governments. It simply follows the structural logic inherent in a federal system of government. As Hamilton explained:
[T]he constitutional operation of the intended government would be precisely the same if…[Clause 2]…were entirely obliterated….If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme….It would otherwise be a mere treaty…and not a government…. the clause…only declares a truth, which flows…from the institution of a federal government. (Federalist No. 33)
The text and original meaning of the Supremacy Clause are crystal clear. Actions taken by the federal government are supreme and take priority over conflicting state actions, but only if and to the extent that the actions of the federal government are in accordance with the U.S. Constitution and with laws of the federal government enacted in accordance with the U.S. Constitution. As Hamilton stressed:
[I]t will not follow from…[the logic of a federal structure]…that acts of the larger society, which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. (Federalist 33, emphasis in original)
Chief Justice Marshall relied on the limitations in the text of the Supremacy Clause and the Oaths Clause discussed above to support his argument for judicial review in Marbury v. Madison (See 5 U.S. 137, 180 (1803)). But the interpretive rule in the Supremacy Clause, located immediately adjacent to the Oaths Clause, is clearly addressed to all in our Republican government who have responsibility for interpreting the Constitution, applying their interpretation to the facts and circumstances before them, and then acting lawfully in accordance with their interpretation and their respective responsibility – Members of Congress, federal executive officials, federal judges, state-court judges, other state officials, and, ultimately, the sovereign citizenry.
Responding Effectively to Government Abuses of Power
In our system of constitutional federalism, with limited enumerated powers delegated to the national government and all other powers reserved to the states and their citizens, established and structured to secure the unalienable rights of a sovereign people, the Framers believed that “the national government must [be the] judge, in the first instance, of the proper exercise of its powers; and its constituents [should be the judge of that] in the last [instance]” (Federalist No. 33).
If the federal government acts in a way that exceeds its lawful authority, infringes on the residuary authorities of the states, and threatens the rights of the people, the Framers were clear that the response should be proportionate to the offense and consistent with established constitutional standards. As Hamilton explained:
If the federal should overpass the just bounds of its authority, and make a tyrannical use of its powers; the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution, as the exigency may suggest and prudence justify. (Federalist No. 33)
As a sovereign people, we have reserved our right, if the government becomes destructive of the ends for which it was established, “to alter or abolish it, and to institute new Government” constituted in a way that shall seem to us most likely to secure our unalienable rights (Declaration of Independence, P. 2). But we have always recognized that, when the government oversteps the just bounds of its authority, our response should be proportionate to the offense. Even as we declared our independence from the British Crown, we acknowledged that “Prudence indeed, will dictate that Governments long established should not be changed for light and transient Causes” (Id.).
The Framers fully understood that, within a federal system of constitutional government established to secure the unalienable rights of a sovereign people, it is essential to respond to government usurpations in a proportionate manner befitting the offense. Such a response effectively protects the rights of the people while at the same time preserving the vitality of the constitutional institutions that have been erected for that purpose. Madison described this prudent approach to usurpations in the following way:
As the people are the only legitimate fountain of power, and it is from them that the constitutional charter…is derived; it seems strictly consonant to the republican theory to recur to the same original authority…whenever… encroachments…[occur]…But there appear to be insuperable objections against…recurrence to the people…in all cases… [E]very appeal to the people would carry an implication of some defect in the government, frequent appeals would, in great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest government would not possess the requisite stability. (Federalist No. 49)
How can we, as a sovereign people, respond effectively to threats posed by the government to our unalienable rights? How can we respond to the government’s usurpations without endangering the stability of our constitutional institutions? How can we respond “as the exigency may suggest and prudence justify” (Federalist No. 33)? The answer is clear. We must look to the states and the various officers therein who have sworn to protect us.
With the rights and extensive residuary powers reserved to them under the Constitution, “the existence of subordinate [state] governments…forms a barrier against the enterprises of ambition” (Federalist No. 46). State officials are bound by the Oaths Clause and the Supremacy Clause to support the actions of the federal government that are taken in accordance with the U.S. Constitution and federal laws enacted “in pursuance thereof.”
State officials – legislators, governors, and judges alike – are also clearly bound by the Oaths Clause and Supremacy Clause, and the constitutional oaths of their respective states, to actively employ the full range of their official powers to protect their citizens from the unlawful actions of the federal government.
State attorneys general who are committed to the constitutional rule of law frequently file lawsuits in an effort to thwart the unlawful actions of the federal government and protect the rights of their state’s citizens. But these suits face a wide variety of procedural challenges and other obstacles. Even when such a lawsuit reaches the Supreme Court and is successful, the scope of the Court’s ruling may be limited and fail to fully address the abusive activity.
Fortunately, litigation is not the only defense available to the states to protect against the unlawful actions of the federal government. The Supreme Court is neither the final nor exclusive interpreter of the Constitution. The people’s elected representatives in Congress, acting with the legislatures of the states, can amend the Constitution to reverse a decision of the Supreme Court or make the decision inapplicable in future cases. Congress can also enact legislation to restrict the appellate jurisdiction of the Supreme Court. Thus, it is the states and sovereign people who act as the final interpreters of the Constitution.
And, if an unlawful action has been taken by the federal government and the court system has not yet finally ruled, then sworn state officials in all three branches of government clearly have the responsibility to address the matter and, within the scope of their individual authority, do everything they lawfully can to thwart the unlawful action and provide full relief to all who have been harmed by it. They have taken a solemn oath to do this. It is the legitimizing reason they hold their office and exercise their authority.
All of us in every state, both as citizens and office holders, have our role to play in the preservation, protection, and defense of our liberty and our constitutional institutions. As sovereign people, we have the authority to act. But sovereignty has to be earned continuously, or we will fail to keep the Republic that has been bequeathed to us by the Founders. We have the responsibility to act to the best of our ability; to ourselves, to all who came before us, and to all who will come after.
At the heart of our experiment in republican self-government stands the animating idea that all persons are created by Nature’s God possessing in equal measure certain unalienable rights that must be recognized, respected, and protected by the governments the sovereign people establish for that purpose. This is the idea that defines America, the idea that secures our liberty, the idea that establishes the foundational first principles for our constitutional system of government.
The Founders held this foundational idea of inherent political equality to be a self-evident truth. A self-evident truth requires no proof. No argument or evidence, or other action, is needed to secure its acceptance. The truth of the idea is obvious and undisputed.
The British King, we know, held other ideas about government, ideas that were fundamentally different from those held by the Founders. He absolutely refused to accept the idea of inherent political equality based on the universal possession of natural rights. Indeed, he inflicted “repeated injuries and usurpations” on the colonies, “all having in direct object the establishment of an absolute tyranny” (Declaration of Independence, P. 2). As a result, to secure their liberty, the colonists were impelled to declare their independence and separate themselves from Great Britain to “assume…the separate and equal station to which the Laws of Nature and Nature’s God entitle” a sovereign people (Id., P. 1).
Just as the British King did, countless other aspiring tyrants throughout our history have refused, and continue to refuse, to accept as true the idea of inherent political equality based on the universal possession of natural rights. They have worked relentlessly to discredit the idea and undermine the institutions we have established to embody the idea and protect our liberty.
Abraham Lincoln understood, better than most, that the threat posed by tyranny to liberty is ever-present and deadly serious. He saw the greatest threat coming, not from foreign tyrants but from those among us who would discredit the principles and undermine the institutions of our constitutional government. As he warned the young men of Springfield in 1838, “If destruction be our lot, we must ourselves be its author and finisher…by suicide” (Lyceum Address, January 27, 1838).
Faced with such a threat, Lincoln saw that it would be foolhardy to assume that the idea of inherent political equality based on natural rights, the animating idea of the American experiment and bulwark of our liberty, will be accepted by the enemies of liberty as a self-evident truth. They have never accepted this truth and never will.
No, to defeat the determined enemies of liberty, we must actively defend the contested idea that secures our liberty. We must do so with steadfast dedication, forthright argument, and timely action. Timely action to defend a timeless idea. As they work tirelessly, so must we work tirelessly, to the best of our ability, using every lawful means available to us, to prove the truth of the contested idea, the truth of the proposition that stands at the heart of our experiment in republican self-government.
At Gettysburg, Lincoln called upon his generation, as he calls upon us today, to remember always that our nation was “conceived in liberty, and dedicated to the proposition that all men are created equal” and to understand that the enemies of liberty are always on the attack, “testing whether that nation, or any nation so conceived and so dedicated, can long endure.” Down through the ages, countless American patriots have labored and suffered and sacrificed to defeat the enemies of liberty “so that that nation may live.”
But the work of self-government is never complete. Sovereignty has to be earned, and liberty is defended continuously by every citizen in each new generation. So now it is for all of us who have benefitted so greatly, and especially for those who are privileged to serve in public office, “to be dedicated…to the unfinished work” that all who have come before “have thus far so nobly advanced.”
If we heed this call from Lincoln and faithfully dedicate ourselves to the unfinished work, the never-finished work, of proving the truth of the proposition upon which our nation was founded and upon which our future depends, then “this nation, under God, shall have a new birth of freedom, and…government of the people, by the people, for the people, shall not perish from the earth.”
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