A Government of Laws or Government of Men?

[Jim Neubacher]

The 10th Amendment means what it says.... and "we the people" are key to re-establishing our Constitutional Republic. Support 10th amendment States Rights. Federal Mandates are UNCONSTITUTIONAL... or have we truly digressed to a government of men.

The perspective from which I am operating is a democratic republic perspective --- the perspective that the people are sovereign, not government. This is important, because through most of history, the people were not sovereign --- and there were governments of men, not of laws. Government was arbitrary --- the people had to follow laws that were derived from the whim of the sovereign. Rule of law requires that government abide by the law, and use appropriate legal mechanisms for making or changing laws. Perhaps Abraham Lincoln put it best, when he referred to government of the people, by the people, and for the people. “The question is not what power the Federal Government ought to have, but what powers in fact have been given by the people.” United States v. Butler, 297 U.S. 1, 63 (1936).

Federal mandates and principles.


Principle #1

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.

Of course, you recognize this as the 10th Amendment to the United States Constitution.

It is stated clearly in the Constitution, but it does not reflect today's reality.

The 10th Amendment means what it says --- and Congressional actions and court decisions to the contrary notwithstanding, it must be restored to its original meaning. If the nation wishes to grant the federal government powers not enumerated in the Constitution, then there is only one legitimate approach ---- and it is to amend the Constitution of the United States.

Much of what Washington does will not be found in Constitution the United States.

Principle #2

The second principle is this:

THE CONSTITUTION MEANS WHAT SAYS --- AND MEANS WHAT IT MEANT WHEN WRITTEN... including amendments to the Constitution.

First, the Constitution allocates to Congress the power “[t]o regulate Commerce . . . among the several States.” Art. I, 8, cl. 3. Interstate commerce was an established feature of life in the late 18th century. See, e.g., The Federalist No. 42, p. 267 (C. Rossiter ed. 1961)First, the Constitution allocates to Congress the power “[t]o regulate Commerce . . . among the several States.” Art. I, 8, cl. 3. Interstate commerce was an established feature of life in the late 18th century. See, e.g., The Federalist No. 42, p. 267 (C. Rossiter ed. 1961)

But again, the reality is far from the theory. The Supreme Court and Congress have stretched and changed the intent of the Constitution time and time again. Let me give you an example. When your predecessors held the first NASACT conference 80 years ago, there was universal agreement that the word "commerce" in the Constitution meant trade or exchange. This is what was intended when the Constitution was ratified. "Commerce" did not mean transportation. "Commerce" did not mean business. And "commerce" certainly did not mean labor. At no time during the last 80 years was a Constitutional amendment ratified that expanded the meaning of the word "commerce." Yet today, the Supreme Court and Congress act as if the Constitution means all of those things and more.

Let me suggest this. If the Supreme Court and Congress can change the meaning of a single word of the Constitution, then we have a government of men, not a government of laws. If the Supreme Court and Congress can change or nullify the 10th Amendment to the of the Constitution, then the First Amendment is in jeopardy, and none of our Constitutional rights are secure. We need a government of laws that respects the mechanisms for changing the nation's fundamental laws. We have a Constitutional crisis. We must restore rule of law in its fullness.

Principle #3

Now to the third principle:

THE CONSTITUTION GRANTS NO BROAD MANDATE AUTHORITY OVER THE STATES TO THE FEDERAL GOVERNMENT

And of course, this includes federal mandates over local units of governments, since they are all divisions of the states.

A federal mandate is an order or requirement by the federal government that a state, or a local unit of government take some positive action. It doesn't matter whether the order or requirement is a condition of the receipt of federal funding. You will find no general federal mandate authority in the Constitution.

I believe that the Constitution authorizes only two federal mandates ---

1. The federal government may require a state to nationalize its militia.

2. The federal government must require the states to have republican forms of government.

This is not to suggest that the federal government has no power over the states --- it does. But its power is largely a power to prohibit acts that violate the Constitution. For example, the federal government can and should prohibit states and their local units of government from violating the Constitutional rights of individuals.

And notice that I didn't say that the federal government has no broad unfunded mandate authority --- I said it has no broad mandate authority. Constitutionally, funded and under-funded mandates are just as inappropriate as unfunded mandates. They are all wrong.

The unconstitutionality of federal mandates is a significant concept. It means that there should be no such thing as a federal matching grant. There are federal powers, and there are state powers. I know that the Supreme Court found matching grants Constitutional. But, the Supreme Court was wrong. The Constitution does not establish any shared powers.

This is not to suggest that the substance of all federal mandates is inappropriate. It is rather to declare that federal enactment and administration is illegitimate.

Some suggest that mandates are authorized by the "supremacy" clause of the Constitution --- the clause that says the laws of the United States are the supreme law of the land. The founders made it very clear --- and you can find this in the Federalist Papers, the supremacy clause means that, with respect to those powers that are delegated to the federal government, federal law is supreme --- the federal government is sovereign. But the states are also sovereign --- with respect to the powers not delegated to the federal government nor prohibited to them by the Constitution. With respect to these powers, the states are supreme ---- there is no conflict of laws, only a division of responsibility that is clearly delineated in the Constitution.

What does all this mean? With respect to the powers not delegated to the federal government, nor prohibited to the states, the states, respectively, or the people are sovereign. With respect to such powers, the federal government has no more business interfering in the affairs of Alabama or Massachusetts than it has interfering in the affairs of the Mexican state of Sonora, the Canadian province of British Columbia, the German state of Bavaria, or Scotland. It's as simple as that.

Principle #4

The fourth principle is this.

POWER SHOULD BE RETURNED TO THE PEOPLE.

This is not simply a Constitutional imperative, but it is also a practical imperative, and a democratic imperative.

It is a fact of life that people have more control over governments that are closer to home. Virtually everyone agrees that political power should be housed at the level of government closest to the people that is competent to handle the function.

There are also economies of scale --- the economies of scale of lobbying. Over-centralization of power makes it simpler for spending interests to have influence --- because it is less expensive to influence one federal government than 50 state governments or 20,000 municipal governments.

Federal mandates are pervasive. They do not number in the hundreds. They number in the thousands --- perhaps in the tens of thousands.

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