Proposal For A Return To Constitutional Government
The Constitutionality Crisis


Proposal For A Return To Constitutional Government — continued

The Restoration of Constitutional Government

Item (1) below was addressed on the previous page.

  1. We must stop the passage of new, unconstitutional laws.
  2. We must strike down unconstitutional laws that are already on the books.

As for item (2) above, it is again up to the states to take the initiative; the federal government will not reform itself. The first step is to make the states realize that they, not the federal government, not the Supreme Court, "own" the Constitution.

At this point, I'm not sure what needs to be done by the states to get the federal government's attention. Strategy is yet to be worked out. I'm open to suggestions.

Money is, of course, the key. Without it, the federal Department of Meddling in Business That's None of Ours couldn't function. Perhaps the states will wake up one day and realize that to regain some autonomy and return to true Federalism, we need to repeal the sixteenth amendment.

It might take one or more very gutsy states to pass a state law mandating that federal withholding taxes collected within the state are to be sent to the state treasury, not to the feds.

States are routinely coerced by the feds. All it takes to restore power to its rightful owners is one hot button issue in each state and the awareness of the state legislatures that they — not the Supreme Court — are the rightful arbiters of what is and is not Constitutional.

The States Must Enforce The Constitution

Does there exist a state legislature with enough backbone to stand up and assert State's Rights?

This is just so much pie-in-the-sky wishful thinking on my part, but here's what I see as needing to happen. One state, just one, needs to decide that it is mad as hell and not going to take it any more. Nevada, for example, does not want a nuclear waste facility within its borders, but the feds are determined to put one there anyway. What would happen if the state legislature of Nevada decided that the federal law under which the waste site was being built was unconstitutional and refused to allow it? Suppose that the state of Nevada passed a resolution barring it and stating that the laws in question were unconstitutional? Would that get the feds' attention?

Surely, each state has one or more issues of contention with the federal government. Why not assert them? Why not scrutinize federal laws affecting states (remember the "unfunded mandates" issue?) and, in each case where states' rights are being trampled, assert themselves? Ignore precedents from the federal courts; they are all predicated on a belief that the Supreme Court is the rightful arbiter of issues regarding constitutionality. They are not. The states are.

The current Supreme Court / Judicial Review paradigm must be abandoned. The Constitution, not the Supreme Court, is the supreme Law of the Land and that supreme law says that "The powers not delegated to the United States [federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The right to judge the constitutionality of federal laws and regulations belongs to the states and to the people.

Challenging Unconstitutional Laws

The states need to develop a mechanism for challenging existing unconstitutional laws to replace the existing system, which requires, among other things, that you first become a criminal. Any citizen of any state should be free to challenge the constitutionality of any federal enactment.

The current paradigm, in which one must bring a lawsuit as an injured party and prove harm in order to have "standing" to bring the suit was concocted by the Judiciary and is a substantial impediment to mounting a challenge. We the People ned a mechanism by which we can challenge unconstitutional laws on principle. It is up to the various states to establish mechanisms by which federal laws and regulations may be challenged and to respond to those bringing the challenges. I submit that it is the responsibility of the legislatures, not the courts, to answer constitutional challenges to federal laws. In keeping with the "Of the People and By the People" spirit, I would hope that the legislatures provide a way for ordinary citizens to initiate challenges.

I envision a system much like the Initiative and Referendum mechanism used in many states. Petitioners wishing to challenge an existing federal law or regulation would collect signatures of the state's citizens on a petition to the state legislature. The state legislature would determine the petition signature requirements. When these requirements were met, the state legislature would issue a declaration that the law or regulation had been found to be unconstitutional.

Additionally, the state legislature would be free to declare a federal law or regulation unconstitutional by whatever other mechanisms it adopted — a simple majority vote, for example — without receiving petitions, if it saw fit to do so. Each state is within its rights to determine for itself, by whatever mechanism(s) it chooses to employ, whether any federal enactments, laws, rules and regulations are unconstitutional.

When the legislatures of greater than one-fourth of all the states had found that a given law or regulation is unconstitutional, that law or regulation would be considered null and void, inasmuch as it had not passed the three-fourths test required of constitutional amendments.

The petition/state legislature mechanism described would return this reserved power to the states and to the people, as is required by the Constitution.

"The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

No one is bound to obey an unconstitutional law and no courts are bound to enforce it."

16 American Jurisprudence, 2nd edition, Sec. 177; late 2nd edition, Sec. 256;

"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

Justice Louis D. Brandeis, Olmstead vs. United States, 277 U.S. 438 (1928)