CONNECTICUT GRASSROOTS ALLIANCE
An Alliance of 28 Grassroots Organizations in Connecticut
HISTORICAL PRECEDENT FOR STATE LEGISLATURE TO ASSERT TENTH AMENDMENT AUTHORITY TO DECLARE FEDERAL LEGISLATION UNCONSTITUTIONAL
I. Background: Declaration of Independence.
The founders clearly stated in two documents that all people have certain inherent rights that could not be taken away. They believed that in order to protect these rights, the people formed governments, which derived their power from the consent of the people governed. Because the government of England became destructive of those ends, the founders declared independence from that government. They made these statements in the Declaration of Independence.
Relevant sections of the Declaration of Independence:
“We hold these truths to be self evident…that all men are created equal, that 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 power 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 foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”
“…that these United Colonies are, and of right ought to be, free and independent states…that they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.”
II. Background: United States Constitution.
This collection of free and independent states, having established in the Declaration of Independence that they were “United Colonies”, following the conclusion of the Revolutionary War, saw the need to establish a new governing authority for the specific purpose of protecting these United Colonies and of reconciling disputes among them. The document they developed, the United States Constitution, established the framework of that governing body, and established limitations on what that governing body was allowed to do.
Considering legislative powers, enacted by elected representatives of the people, to be of primary importance, the founders established the legislative branch first and specified its powers in Article I. Next, the founders established the executive branch, specifying its powers in Article II, and established the judicial branch next, specifying its powers in Article III.
During the process of ratification, the founders wrote extensively about federal authority versus the authority of the states. These writings can be found in the Federalist Papers and the Anti-Federalist Papers. Many feared the power of the federal government. Subsequently, ten amendments were added to the Constitution, known as the Bill of Rights. The preamble to the Bill of Rights explains that when individual states held conventions to ratify the Constitution, the states were concerned about potential abuses of power by the federal government, and that further restrictive clauses should be added to the Constitution to prevent “misconstruction” or “abuse of power”. That’s why the first ten amendments to the Constitution were adopted.
The ninth and the tenth amendments were especially important in this regard, to specifically clarify that the Constitution placed limits on the power of the federal government. The ninth and tenth amendments state, in no uncertain terms, that the powers not specifically delegated to the federal government were retained by the states and by the people.
Relevant Constitutional Provisions:
“We the People, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and to our posterity, do ordain and establish this Constitution for the United States of America.”
Article I, Section 8 –
“The Congress shall have power to lay and collect taxes, duties, imposts and Excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations; and among the several States, and with the Indian tribes;
To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies
throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and
To provide for the punishment of counterfeiting the securities and current coin o f the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the supreme court;
To define and punish piracies and felonies committed on the high seas, and offenses against the Law
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and
To raise and support armies, but no appropriation of money to that use shall be for a longer term than
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and
To provide for organizing, arming, and disciplining the militia, and for governing such part of them as
may be employed in the service of the United States, reserving to the states respectively, the
appointment of the officers, and the authority of training the militia according to the discipline
prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding miles
square) as may, by cession of particular states, and the acceptance of Congress, become the seat
of the government of the United States, and to exercise like authority over all places purchased by
the consent of the legislature of the state in which the same shall be, for the erection of forts,
magazines, arsenals, dock-yards and other needful buildings; - and
To make all laws which shall be necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in the government of the United Staes, or
in any Department or Office thereof.
Bill of Rights Preamble –
“The Convention of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the government, will best ensure the beneficent ends of its institution: Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said legislatures, to be valid to all interests and purposes, as part of the said Constitution viz…”
Ninth Amendment –
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Tenth Amendment –
“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.”
III. Does the state legislature have the authority to declare a federal law unconstitutional?
A. The Constitution does not grant to any branch of the federal government the authority to declare any federal law unconstitutional.
The first three Articles of the Constitution describe the authority of the three branches of government. None grant any specific authority to any branch to determine the “constitutionality” of any federal law.
According to the Tenth Amendment, because the Constitution does not delegate that power to the United States, and because that power is not prohibited to the states by the Constitution, the power to declare the constitutionality of any federal law is a power that is reserved to the states respectively, or to the people.
B. How did it come about that the United States Supreme Court declares federal laws unconstitutional?
In 1803, the Supreme Court was asked to decide a case called Marbury v. Madison, 1 Cranch 137, 177 (1803). Outgoing President John Adams had appointed Marbury as justice of the peace in the District of Columbia. The appointment was signed and sealed, but not delivered. President Madison refused to deliver to Marbury his appointment. The case went before the Supreme Court.
Chief Justice John Marshall had a problem. He believed that Marbury had a legal right to the appointment but the Constitution did not grant appellate jurisdiction to the Supreme Court to decide the case. To prevent dismissal of the case, Chief Justice Marshall took it upon himself to declare that the Supreme Court did have the appellate jurisdiction to hear the case, and decided in favor of Marbury. From that point forward, the ability of the Supreme Court to determine the constitutionality of laws was accepted.
C. How does the state legislature have the authority to declare a federal law unconstitutional?
The United States Constitution, pursuant to the Tenth Amendment, states that the powers not specifically delegated to the federal government, nor prohibited by it to the States, are powers that are retained by the States or the people.
The power to declare a federal law unconstitutional is not a power that is specifically granted to the federal government by the United States Constitution, nor prohibited by it to the States. Therefore, it is a power that is retained by the States or the people.
It is clear from the Tenth Amendment that the power to declare a federal law unconstitutional is a power that is retained by the States and by the people.
If one branch of government, the judicial branch, may determine the constitutionality of a statute, another branch may as well since all three branches are co-equal branches of government.
In this case, the State General Assembly is merely asserting the power that it always retained, pursuant to the Tenth Amendment, to declare federal laws unconstitutional.
The power of a State to declare an undelegated power of the federal government to be unconstitutional is not a radical or novel idea. In fact, it was an essential principle of the founders. None other than Thomas Jefferson stated in the Kentucky Resolution of 1798:
“1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
Similarly, James Madison believed in a State’s ability to declare a federal law unconstitutional. In fact, the Virginia legislature declared the Alien and Sedition Acts unconstitutional. Madison wrote in the Virginia Resolution of 1798:
“Resolved…That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them….That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.”
The founders understood that the federal government is a government of limited powers, and when that government oversteps its bounds in adopting any law, each state’s legislative body has the retained authority, pursuant to the Tenth Amendment, to declare that law unconstitutional. Indeed, as the founders declared, each state has the duty to declare such a law repugnant to the Constitution and, therefore, to be null and void. Connecticut also retains this authority, and this duty.
Contact person: Attorney Deborah G. Stevenson
National Home Education Legal Defense, LLC
226 East Flag Swamp Road
Southbury, CT 06488
(860) 354-3590 -office
(203) 206-4282 -cell
(860) 354-9360 - fax