In Part 2 of this discussion I covered how the U.S. Constitution established three branches of government, each with specific duties (separation of powers), which provided a system of checks and balances. This system was established to prevent any single branch of government from becoming more powerful than the other two.
Another separation of powers spelled out in the Constitution is often overlooked that has a major impact on the lives of ordinary citizens. It is the division of responsibility for governing between the federal government and each of the states that constitute this federation called the United States of America.
Over the past several decades there has been a dramatic shift in interpretation of what is the responsibility of the federal government to the populous versus what are the states’ responsibilities. This is commonly referred to as “states’ rights” issues.
To examine this problem let us look at what Amendment 10 of the Bill of Rights states in the Constitution:
Amendment 10 – Powers of the States and People
“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.”
Without a doubt the 10th Amendment intended to limit the powers of the federal government to only those specifically stated in the Constitution. However, over the years the federal government has usurped more and more of the responsibilities of the states by taking over much of what had been previously exercised by state governments. This has resulted in a dramatic shift in power to the federal government which clearly violates the intent of the 10th Amendment of the U.S. Constitution. This has been accomplished through an increasingly liberal interpretation of the Constitution by the federal courts and the U.S. Supreme Court.
Alexander Hamilton, writing in The Federalist, stated that the Supreme Court was “the weakest of the three branches,” and could take “no active resolution whatever.”
Today the federal courts and the Supreme Court are reviewing more and more of the laws passed by congress and also those passed by the states. This has been brought about by activist groups, such as the ACLU and others, filing law suits claiming that laws they do not agree with are unconstitutional. As courts have become more and more liberal in their thinking and rulings, “states rights” have been given short shrift and powers previously exercised by the states have become federal government powers. As citizens we have become so used to hearing that something is “unconstitutional” that many people now believe that they have certain constitutional rights that are not even mentioned in the Constitution.
If you recall, in Part 1 of this discussion I mentioned a legal term stare decisis which means “let the decision stand.” Without going into detail about how the federal court system operates, I’ll just say that when a federal court reviews a law passed by a state and declares it “unconstitutional” it sets a precedent (stare decisis) that all lower courts must recognize.
Of course an appeal can be filed with the Supreme Court and, if accepted by the court, it will review and either uphold or overturn the decision(s) of the lower court(s). But, if the Supreme Court upholds the decision of the lower court that a law is “unconstitutional” then in effect that becomes “the law of the land.” The only way it can be changed is by amending the Constitution or by the U.S. Supreme Court revisiting the issue and ignoring stare decisis on its previous ruling.
Many of the areas in which the Federal Government has usurped the rights of the States involve what are commonly referred to as “social issues.” In modern times the “commerce clause” of the Constitution has become the most frequently cited authority to take away a state’s rights and give it to the federal government.
Article 1, Section 8 of the Constitution contains the Commerce Clause which states: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
A very short sentence but as it has been applied by some federal courts and the U.S. Supreme Court it can mean just about anything constitutes commerce. I will cite one example where the Supreme Court overturned a California State Law using the Commerce Clause.
In 1996 California voters passed Proposition 215 which legalized the medical use of marijuana. On August 15, 2002, Butte County Sheriff’s Department officers and agents from the federal Drug Enforcement Administration (DEA) raided the residence of Diane Manson and destroyed six marijuana plants she was growing for her own use. She suffered from chronic pain due to a car accident a decade before and used marijuana to relieve pain and muscle spasms around her spine.
Another California Resident, Angel Raich was also using marijuana for pain relief. She and her doctor claimed to have tried dozens of prescription medicines for her numerous medical conditions and that she was allergic to most of them. Her doctor declared under oath that Raich’s life was at stake if she could not continue to use marijuana.
These two anonymous caregivers sued the government for injunctive and declaratory relief to stop the government from interfering with their right to produce and use medical marijuana claiming that the Federal Controlled Substances Act was not constitutional as applied to their conduct.
Their suit made it all the way to the U.S. Supreme Court where Proposition 215 was declared “unconstitutional” under the Commerce Clause. The reasoning of the Supreme Court was that under federal law growing, possessing, or selling marijuana was illegal and since there was a demand for it by others outside of California, people growing or possessing it there could potentially sell it outside of California. Thus because interstate commerce could be involved and it became the governing factor.
Such abstract thinking is how the Supreme Court has ruled on many social issues that have usurped the rights of individual states and individual citizens. These are issues such as abortion, legalizing marijuana, and even the recent issue of forcing all citizens to buy health insurance (ObamaCare).
Many people who feel strongly about social Issues believe others that think there is no constitutional right to them are against the issue itself. The truth is many social issues fall into the category where some people believe state laws should govern the issue and not the federal government (states’ rights issues).
They may also believe the way Robert Bork stated during the Senate Hearing on his unsuccessful appointment to the Supreme Court. He said that if something was what the citizens chose to be the law of the land it should be done by amending the Constitution and not by interpreting the Constitution.
It is this interpreting of the Constitution rather than applying the Constitution that I believe is an “abuse of power”. The authority to create law was given to the legislative branch of government (congress) and not the judicial branch. There is an even wider abuse of power occurring within our government. As you are aware, the President has the authority to appoint federal judges and Supreme Court Justices on the “advice and consent” of the Senate.
In 1953 President Dwight D. Eisenhower appointed Earl Warren (former Governor of California) as Chief Justice of the U.S. Supreme Court. Between 1953 and 1969 Earl Warren served as Chief Justice and led an increasingly liberal Court to expand civil rights, civil liberties, judicial power, and the federal powers in a very dramatic fashion. Many of what have become known as the “social issues” were decided during Warren’s tenure.
One of the results of Warren’s tenure was that our presidents and congress discovered they could at least partially control the ultimate outcome on issues to be presented to the Supreme Court before by controlling who was appointed and approved to serve on the Supreme Court. Social beliefs of a candidate rather than judicial acumen became the guiding force behind appointing judges to the federal courts and to the Supreme Court. Many of the major issues that have come before the Supreme Court in recent years have been decided by a 5 to 4 decision divided along ideological beliefs rather than a strict application of the Constitution.
It is this conscious decision by the President and the congress to appoint and approve judges based upon their political and social beliefs that I think constitutes the ultimate abuse of power. Why do I say this? It is because our President and congressional members were elected to represent the citizens of the United States and not to further their own personal beliefs or interests. We expect them to think about what is best for all of us and to enforce the Constitution and not corrupt it.
During the past couple of years we have seen a Bill commonly referred to as “ObamaCare” pushed through Congress on a purely partisan vote and signed by a partisan President when, according to polls, 61% of the citizens opposed it. This was done even though, according to all reports, not a single member of Congress had read this massive Bill and/or understood its implications. U.S. Representative Nancy Pelosi who led the fight for passage of this Bill in the House of Representatives was quoted as saying, “we have to pass the bill so that you can find out what is in it”.
Several states filled suit against the law arguing it was “unconstitutional” and if implemented would bankrupt the state(s). It was ultimately heard by the U.S. Supreme Court and declared “constitutional” in one of the most convoluted decisions ever rendered by the Court.
I believe the passage of ObamaCare by Congress, signed by the President, and subsequently upheld as “Constitutional” by the U.S. Supreme Court is the most egregious ABUSE OF POWER EVER EXPERIENCED IN THE UNITED STATES!
The concept that the federal government (backed by the federal courts) has the right (power) to tell every citizen of the United States they must buy health insurance, whether they want or need it, violates every principle on which this great nation was founded.
For those of you who may believe in ObamaCare, or some of the other issues where I believe the federal government has usurped rights previously exercised by the states, I give this warning: “you may have won a battle you truly believe in but by circumventing the proper way of achieving your goal you have diminished the value of our Constitution.”
It should be remembered that one of the most important things the Constitution was expected to accomplish was to protect the People from their own government. In drafting the Constitution, our founding fathers hoped to accomplish this separation of powers by limiting the power of the government over the people. The Bill of Rights was added to the Constitution to clearly establish what the “rights” of the citizens are. This great document, so well thought out by our founding fathers, has served us well for more than 200 years. If we now let our President, congress, and courts misuse it we will diminish it to the point that it no longer serves to guide us as a nation.
“Be careful what you wish for; you just might get it.”