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January 15, 2010
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Do We the People really establish our government or is the government 'self-establishing'?





Let me explain the basis for the question.

The 10th Amendment is an interesting article because of more than just the fact that it advances the idea of delegated powers. Certainly it reserves to the several States any powers not delegated in the Constitution to the federal - excepting those few expressly forbidden to the States in the federal Constitution. Most of the time when people talk about the 10th Amendment this is as far as it goes where their presented logics are concerned (they stop at "States' Rights") and they essentially fail to address the full aspect of the article: that powers are reserved to the people too.

I, like many others, have neglected this aspect of the Article in the past; however, there comes a time when you get tired of presenting the same old States' Rights arguments ad infinitum. At such a time I finally looked to this often neglected aspect of the text and found something ... important.

Something that relates the question of how governments are established among men.

Consider for a moment what it means to say that powers are reserved to the people in a document that delegates powers to a Government.

Clearly, in light of Article 5, these powers would be those that the people have not yet incorporated - or delegated - to the federal government. The idea of unincorporated powers strikes at the very heart of the origin of governing authority in the United States.

Simply, an unincorporated power is that which the people have not lawfully delegated to a government according to proper procedures as set forth in Law (Article 5 sets forth that procedure for the federal government).

This is why the 10th Amendment, though generally the logical grammar for the whole of the Constitution to which it was amended, would have likely appeared in Article 5 had it been there at the beginning since it speaks to the source of any powers that future amendments may delegate to the federal.

Yet the 10th and its reservation of powers to the people also has relevance to the several States for it also speaks to the Framer's expectations concerning how the States too came by their powers. So this should be seen as a general principal in American governance: that the people retain all powers they do not lawfully delegate to some government.

Also, that the act of delegating a power to one government, say the federal for national defense or else to a State for local law enforcement, says nothing about if such grants of power are general to all applicable governments - under the 10th Amendment they expressly are not and powers not delegated to the federal are retained by others besides it.

So when it is said that people establish their government it means exactly this: they delegate Powers to it through some set procedure that is deemed lawful and otherwise retain all unincorporated powers to themselves and the future.

Here I will turn to the words of Chief Justice John Marshall from Marbury vs. Madison for further clarification of this principal:
That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.

The clarification I sought was this: the anticipation that the establishment of a Government was in and of itself a permanent gesture that affects not merely the current generation but also all future generations.
Also, as an aside, I'm somewhat convinced that this view of the permanence of governments lay behind some of the hostility between Jefferson and Marshall over the matter. Jefferson clearly expected that frequent turmoils would reshape the government as it had done (rather than wait on amendments) while Marshall was explicit in holding the federal's feet to the fire when it came to respecting the authority that established it ... and incidentally helping to avoid the tyrannies that would enjoin future domestic unrest so long as it did. You could hardy have two more different views on the matter than these.

This is why it is important that we have an amendment process for it is by this means that we may further delegate powers to the federal (or even potentially remove them, returning them to the body of unincorporated powers retained by the people). In essence, those who amend the Constitution themselves become Framers of same with respect to what they have authored, debated and accepted. In turn their adjustments are "designed to be permanent" too.

So we arrive at the Framer's sense of how our government was established: that the people have delegated Power to a Government for the benefit of themselves and their posterity and they have retained all powers not so delegated to themselves - unincorporated.

This is the proper sense that We the People have established our Government with a view of those ends as set forth in the Preamble to the Constitution.

Now comes the rub, and please bear with me as I again turn to Marbury:
To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

Consider the highlighted text in light of this essay.

What is happening when the legislature enacts some law for which it has no delegated authority?

It is assuming to incorporate a power that remains, as per the 10th Amendment reserved to the people.

Can the Congress lawfully do this anyway? Is it not an elected body representing the people?

If a legislature, or an administrator or a jurist for that matter, can claim by right of representation ability to further delegate powers on account of statutes but not according to the proscribed method (i.e. an amendment process) then the people have not even had the opportunity to vote on the matter.

Remember, a representative is there to represent the people and not to assume powers expressly left in their hands. When there is an amendment process, when there are the great debates across the nation on what kind of a Republic we will be, THEN the people have their vote on fundamental Law. They do not vote for alteration of fundamental Law when they merely vote for a representative tasked with carrying out delegated powers actually possessed by the federal at the time.

Or even possessed by a State when dealing with electing a State representative.


So when a government takes upon itself to alter its powers it is in fact a self-establishing entity.

Thus we see the truth behind what Chief Justice Marshall wrote: "if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable."

The illimitable power is precisely the power of any government that is self-establishing (which would also be "self-expanding") and which has no need of some extraordinary procedure such as an amendment process.

Under such a government it is impossible that any powers at all are ever reserved to the people, they do not establish their governments, for whatever powers may seem to be theirs are merely those that their government has yet to assume on their behalf.

So you may see by now why I'm starting to believe that this often neglected aspect of the 10th Amendment may be, in fact, the most important aspect of all.

Even if, as it may hopefully someday happen, true and lawful federalism is again restored to this land, this very principal should also be applied for how WE THE PEOPLE have also established these State governments too - so that we will not merely trade one master, one great tyrant, for many.
An essay covering a much neglected aspect of how the American Republic was founded.
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