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CONSTITUTION CONFLICTS

Foundation of the Federal Republic

By Warren L. McFerran - The New American (1988)

May 31st of this year marks the 75th anniversary of the adoption of the 17th Amendment to the Federal Constitution, which provided for the direct election of U.S. Senators by the people of the States, rather than by the State legislatures as originally provided in Article I, Section 3 of the supreme law of the land.

The amendment had been a pet project of a left-wing "reform" movement that first began agitating in earnest for a change in the selection process of Senators in 1886, just a decade after the end of Radical Reconstruction in the South. From that year onward, a constitutional amendment to wrest control of the upper chamber of the federal legislature away from the State governments was introduced annually in Congress.

Yet, it was not until the rise of the so-called Progressive Era, shortly after the turn of the century, that the impetus necessary to push the amendment through Congress -- over strong Southern opposition -- and to secure its approval by three-fourths of the States could be generated. The 17th Amendment sailed through Congress and was hustled through the ratification processes of the requisite number of States within a 12-month period, finally going into effect on the last day of May 1913.

Amidst the turbulent populism of the "Progressive Era," little attention was given to the Founding Fathers' reasons for reserving the selection of U.S. Senators to the various State legislatures. Not only did the Founders of the American Republic intend that senators should serve as ambassadors from their respective States -- with the power to ratify treaties with foreign nations, and with each state being equally represented as a tribute to its sovereign status -- but they deliberately designed the senatorial selection process to serve as a check upon excessive popular fervor.

As James Madison put it: "The use of the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch." Reflecting the views of the other Founding Fathers, John Dickinson noted: "Let it be remembered that the Senate is to be created by the sovereignties of the several States; that is, by the persons whom the people of each State shall judge to be the most worthy, and who, surely, will be religiously attentive to make a selection in which the interest and honor of their State will be so deeply concerned."

The American people, by 1913, had forgotten the wisdom of the Forefathers, and the carefully designed check on the upper branch of Congress was flung aside like a relic. But the adoption of the 17th Amendment was merely one of many blows dealt to our Constitutional Federal Republic in an effort to transform it into a National Democracy and, ultimately, a socialist dictatorship.

As a consequence of these repeated blows to our political system, the de facto system now functioning in the United States bears little resemblance to the de jure system prescribed by the Constitution, and the American people, by and large, have lost all memory of their own heritage. There are very few today who even realize that there is a difference between a Republic and a Democracy, or between a national and a federal system of government, let alone comprehend the profound significance of those differences. And rare indeed is the individual today who realizes that our constitutional system rests upon the concept of a league of sovereign States, and that upon the preservation of the rights reserved to the respective States depends the liberties of all Americans.

The Lesson of Germany
Such ignorance of our constitutional system cannot continue indefinitely if we are to remain a free people. The tragic fate of Germany earlier this century should serve as a reminder to all Americans of the importance of preserving our political system. Like the United States, Germany was constituted as a Federal Republic -- a confederation of sovereign States with a strictly limited Federal Government. At a time when Germany was suffering from the aftermath of its defeat in World War I and was experiencing a financial crisis, a man and a party stepped forward to proclaim that Germany's problems could be solved by replacing the Federal Republic with a National Democracy. The man's name was Adolph Hitler; his party was known as the National Socialists; and his proposal appeared in the form of a book entitled Mein Kampf.

Adolph Hitler demanded the "inverting" of the concept of sovereignty, the transfer of sovereignty from the people of the German States to the central government. Such an inversion was necessary to create a "powerful national Reich" and a "powerful National Government." "Today it is an absurdity to speak of a 'State sovereignty' of individual provinces," he insisted, ridiculing especially those who protested against the "so-called 'theft of sovereign rights' from the Bavarian State by the Reich." Hitler bitterly condemned what he termed "so-called federalistic circles," and said that the "federative State idea, like religion in part, is only an instrument for their often unclean party interests."

The future tyrant asserted: "Moreover, a young victorious idea will have to reject any fetter which might paralyze its activity in pushing forward its conceptions. National Socialism as a matter of principle, must lay claim to the right to force its principles on the whole German nation without consideration of previous federated State boundaries, and to educate it in its ideas and concepts. Just as churches do not feel bound and limited by political boundaries, no more does the National Socialist idea feel limited by the individual State territories of our fatherland."

"The National Socialist doctrine is not the servant of individual federated States, but shall some day become the master of the German nation. It must determine and reorder the life of a people, and must, therefore, imperiously claim the right to pass over boundaries drawn by a development we have rejected."

Hitler placed such importance upon the annihilation of States' Rights in Germany as a prerequisite to the installation of his left-wing dictatorship that he italicized every word within these two paragraphs in his book. Of course, this clever conspirator ended his assault upon States' Rights in Germany by offering the standard lie given by all those who cherish unlimited government: "The more complete the victory of its ideas will be, the greater may be the particular liberties it offers internally." The German people, forgetful of even the most basic concepts on which their liberties were founded, elected Adolph Hitler to power.

A similar scenario is being played out in the United States. Already, the Federal Government has unlawfully assumed possession of virtually unlimited powers and is moving to regulate and dominate all aspects of American life in total disregard of those rights constitutionally reserved to the States. Not content with this, proponents of government supremacy are already agitating for a constitutional convention so that an entirely new constitution for the United States can be drafted -- a new constitution that would, at the very least, legitimize the currently illegal activities of the Federal Government. Also afoot is a conspiracy to surrender "national" sovereignty to a World Government.

Sovereignty is the supreme political authority from which all the powers of government are derived. Whoever possesses that supreme authority is obviously the master within any political system, and whoever is subject to the control of that sovereignty is clearly the servant. In the system of government that sprang up in Europe over the centuries, sovereignty was reserved to the King and his government, while the people were regarded as subjects. The American Revolution, however, was founded upon the opposite premise, making the United States almost unique in the history of the world.

The concept of the sovereignty of the people guided Thomas Jefferson when he penned the most frequently quoted segment 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 powers 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 to 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."

Thus, within our political system, the people are sovereign; they are the masters, and government at all levels is their servant. The people delegate powers to all the levels of government, and their sovereign will is expressed through the Federal and State constitutions.

Democracy Versus Republic
Is the United States a Democracy, or is it a Republic? And which of these two forms of government is best? Upon these questions hinges the destiny of our civilization, for the difference between the two is like the difference between good and evil.

By definition, a Democracy is a form of government in which the people either govern directly (pure or direct Democracy) or indirectly (indirect Democracy) through elected representatives. It is characterized by the "rule of men," since the powers of government are limited only by the consciences of the numerical majority. There are no safeguards for the rights of the individual in a Democracy, and in actual practice this form of government functions as a mobocratic tyranny (pure Democracy) or as an elective dictatorship (indirect Democracy).

The U.S. Army Training Manual of 1928 characterized Democracy as follows: Attitude toward property is communistic -- negating property rights. Attitude toward law is that the will of the majority shall regulate, whether it be based upon deliberation or governed by passion, prejudice, and impulse, without-restraint or regard to consequences. Results in demagogism, license, agitation, discontent, anarchy.

Fortunately for the liberties of the American people, our Founding Fathers understood the true nature of Democracy and relegated it to that triad of evils to be rigorously avoided -- "monarchy, aristocracy, and Democracy." Instead of constituting a Democracy for the United States, they repeatedly and emphatically insisted that they had established a Republic.

As in the case of an indirect Democracy, within a Republic the people elect representatives to enact, enforce, and interpret the statutory laws that govern society. Also like a Democracy, a Republic is founded upon the concept of majority rule. The crucial difference, however, is that within a Republic the majority may rule only in those areas where the Constitution authorizes them to rule. Should the majority attempt to govern in areas beyond the limits established by the Constitution, its acts will be null, void, and of no force.

It is this crucial concept of limited government that sets a Republic apart from a Democracy, and makes one form of government good and the other evil. And since the people within a Republic establish and define the limits of the government through a Constitution, which is set over the government, they -- not the government -- are supreme and sovereign. As long as the government is confined to constitutional limits, the people within a Republic remain the masters in the political system. Should that government break loose from its constitutional restraints, however, the Republic would be transformed into a Democracy and the master servant relationship would ultimately be turned upside down.

National Versus Federal
By definition, a national system of government is one wherein a single government is supreme over both foreign and domestic affairs and possesses all the powers normally vested in any government. Although local governments may exist within a national system, these are not independent of the central government, but function merely as local departments or branches of the general authority. Such local governments, if they exist, routinely receive directions, guidelines, supervision, and perhaps financial assistance from the consolidated general government.

In contrast, a federal system of government is one wherein many separate and independent governments exist to perform specific and delegated functions. It is a system formed by an alliance or league of sovereign States or nations, in which each member of the Federal Union retains its sovereignty. The Federal Government created by the federal compact (Constitution) between the sovereigns exists only to exercise those powers of government relating to foreign and interstate affairs, while the State governments possess exclusive powers of government pertaining to the internal or domestic affairs of their respective citizens.

One of the most concise yet accurate characterizations of a federal system of government is contained in Vattel's Law of Nations: "Several sovereign and independent States may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect State. They will form together a Federal Republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill the engagements into which he has very willingly entered."

In a subsequent passage, this celebrated author explained what he meant by a person: "The law of nations is the law of sovereigns; States free and independent are moral persons."

The greatest internal threat faced by a Federal Republic is that it might degenerate into a National Democracy as a prelude to socialist tyranny. This danger arises whenever the Federal Government attempts to evade its constitutional limitations and usurp the powers and rights that are lawfully reserved to the States. To function as a Democracy -- to function in accordance with the principle of unlimited majority rule -- the general government must steal the rights and powers reserved to the States, must force the State governments to become subservient to it, and must transform the federal system of government into a national system. The preservation of the liberties of the people, and of the Federal Republic, thus depends directly on the maintenance and preservation of the foundation of the federal system: States' Rights.

Conclusive proof that our Founding Fathers did, in fact, constitute a Federal Republic for the United States, building upon the foundation of State sovereignty, can be found in four great state papers: the Declaration of Independence, the Treaty of Paris of 1783, the Articles of Confederation, and the Federal Constitution.

Although the Declaration of Independence is a magnificent state paper containing a great many truths, it was written and issued for one and only one purpose -- to announce to mankind that the former British colonies in America had resolved to become free and sovereign States! This declaration is contained within a single paragraph: "We, therefore, the representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions do in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, that these United Colonies are, and of Right ought to be free and independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as free and independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and all other Acts and Things which independent States may of right do."

Several points of great importance are revealed in this key paragraph in the Declaration of Independence. Prior to its issuance, a proposal had been made in the Continental Congress by New Hampshire that the United Colonies should assert their independence as a single sovereign State. This, however, was rejected after deliberation, and the word States appeared in its plural form in the Declaration. As Thomas Jefferson was to write much later: "The several States were, from their first establishment, separate and distinct societies, dependent on no other society of men whatever."

According to Justice Samuel Chase, this great state paper on which American freedom was founded was a "declaration, not that the United Colonies jointly, in a collective capacity, were independent States, etc., but that each of them was a sovereign and independent State." Another judicial authority in the earlier days of the Republic, Justice Cushing, noted: "The several States which composed this Union ... became entitled from the time when they declared themselves independent, to all the rights and powers of sovereign States."

A second key point in the passage of the Declaration of Independence cited above is that it provides the true definition for the term "State." According to the Declaration, each of the former British Colonies was asserting its rights to be a State. That same Declaration also referred to Great Britain as a "State." A State, therefore, can be properly defined as a sovereign nation. Our country could, in fact, have been titled the League of Nations or even the United Nations, instead of the United States.

Within the Treaty of Paris of 1783, which officially terminated the hostilities between the State of Great Britain and the American States, the British Government specifically acknowledged and agreed to recognize the sovereignty of the States, listing each State by name: "His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia to be free, sovereign and independent States; that he treats with them as such."

The Articles of Confederation
Understanding the necessity of a common defense and recognizing the value of confederation to weaker States who are threatened by stronger nations, the 13 sovereignties who had asserted their independence in the Declaration had, by 1781, formed a Federal Republic under a Federal Constitution officially entitled the Articles of Confederation.

The Preamble of our first Federal Constitution asserted that what was being constituted was a "Union between the States," and Article I declared: "The style of this Confederacy shall be, 'The United States of America.'" Thus, the "United States of America" is not the title of a single, sovereign nation; it is, and always has been, the official title of a federation of sovereign States.

Throughout the Articles of Confederation, the term "United States" is regarded as a plural entity, as in this phrase from Article VI: "the United States, or any of them." Since the States within the Federal Union were sovereign, Article IV recognized the crime of treason against a State and made provision for the extradition of traitors who commit treason in one State and flee to another.

Article II asserted: "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled."

Article Ill asserted: "The said States hereby severally enter into a firm league of friendship with each other, for ...." What followed these words were obviously the reasons why the States created the Federal Union. Among these reasons was to provide mutual defense against "attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever." Thus, the Federal Union was created to protect, defend, and preserve the sovereignty of the States.

Although Article IX vested the power of war in the United States, Article VI reserved to the separate States the right to assume emergency war powers if necessary: "No State shall engage in any war without the consent of the United States ... unless such State be actually invaded by enemies," or unless such State "shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States ... can be consulted."

The Federal Constitution
Was this Federal Republic perpetuated under the Constitution of 1787? In A Discourse on the Constitution and Government of the United States, John C. Calhoun, the ante-bellum statesman from South Carolina, answered that question as follows: "That it is federal and not national we have the high authority of the Convention which framed it. General Washington, as its organ, in his letter submitting the plan to the consideration of the Congress of the then Confederacy, calls it in one place the "general government of the Union" and in another "the Federal Government of these States." Taken together, the plain meaning is that the government proposed would be, if adopted, the government of the States adopting it, in their united character as members of a common Union, and as such would be a Federal Government. These expressions were not used without due consideration and an accurate and full knowledge of their true import. The subject was not a novel one. The Convention was familiar with it. It was much agitated in their deliberations. They divided in reference to it in the early stages of their proceedings. At first one part was in favor of a National and the other of a Federal Government. The former, in the beginning, prevailed; and in the plans which they proposed the Constitution and government are styled "national." But finally the latter gained the ascendancy, when the term "national" was superseded and "United States" substituted in its place. The Constitution was accordingly styled "the Constitution of the United States of America," and the government "the Government of the United States," leaving out "America" for the sake of brevity. It cannot admit of a doubt that the Convention, by the expression "United States," meant the States united in a Federal Union; for in no other sense could they, with propriety, call the government "the Federal Government of these States" and "the general government of the Union," as they did in the letter referred to. It is thus clear that the Convention regarded the different expression, "the Federal Government of the United States," as meaning the same thing -- a Federal, in contradistinction to a National, Government."

In the Federalist, No. 39, James Madison asserted similar sentiments: "That it will be a federal and not a national act, as these terms are understood by the objectors -- the act of the people, as forming so many independent States, not as forming one aggregate nation -- is obvious from this single consideration: that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it .... Each State, in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal and not a national Constitution."

In the Federalist, No. 40, the Father of the Constitution explained the basic principles on which the new Federal Constitution was based: "I ask, What are these principles? Do they require that in the establishment of the Constitution the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed ...."T. JEFFERSON's COPY: FEDERALIST PAPERS

"The truth is that the great principles of the constitution proposed by the Convention may be considered less as absolutely new than as the expansion of principles which are found in the Articles of Confederation."

While addressing the Virginia State ratifying convention, James Madison asserted: "Who are the parties to it [the Constitution]? The people -- but not the people as composing one great body; but the people as composing thirteen sovereignties ... were it such a [National] government as is suggested [by opponents of ratification], it would be now binding on the people of this State, without having had the privilege of deliberating upon it; but, sir, no State is bound by it, as it is, without its own consent ...."

In the Federalist, No. 82, Alexander Hamilton noted that the Federal Constitution recognized the States as "a number of distinct sovereignties." And in the Federalist, No. 45, James Madison asserted: "The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State governments are numerous and indefinite." He went on to point out: "The operations of the Federal Government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security."

In the Preamble, the Constitution states that it has been established by "the people of the United States," meaning the people of each State, acting as States, each State for itself. This is the only interpretation of the Preamble that is consistent with the provision of Article VII that the Constitution would serve as a compact "between the States so ratifying the same."

The title of the Confederation was retained in the Constitution -- the "United States of America" -- and the general government was officially titled the "Government of the United States," a title that is consistent with the concept of a Federal Government. Article I, Section 10, Clause 3 acknowledges the emergency war powers of the States by asserting that no State shall "engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

Article II, Section 1, Clause 2 declares that, "in the event no Presidential candidate receives a majority of votes in the Electoral College, the House of Representatives shall elect the President, with each State having one vote." Article III, Section 3, Clause 1 defines treason against the United States: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

Treason against the United States, therefore, is a crime committed against all the States. Yet, Article IV, Section 2, Clause 2 acknowledges that treason can also be committed against a single State. In fact, the Federal Government itself can commit treason against the States.

Article IV, Section 4 declares: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive [when the Legislature cannot be convened] against domestic Violence." Thus, only upon receiving a request from a State government, and only to uphold the laws of a sovereign State, may the Federal Government lawfully exert martial power domestically or internally.

Article VI, Clause 2 asserts that the Constitution, all statutory laws made in pursuance of the Constitution, and all treaties shall constitute the "supreme law of the land." A "supreme law" is not the same thing as a supreme government, and laws not made in pursuance of the Constitution are non-binding.

Although Alexander Hamilton was correct in asserting that the Bill of Rights was not necessary, since it was clearly understood that all powers not delegated were reserved by the sovereigns, the Founding Fathers added ten amendments, the ninth of which declared: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Tenth Amendment concisely summarized our federal system: "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."

As one final point to illustrate that the Federal Constitution does indeed recognize the sovereignty of the States, we note that it provides for two different methods of adopting amendments, both of which require that the States give their assent to any amendment before it becomes a part of the supreme law of the land. Thus, through the amendment process, the States -- and only the States -- can alter, diminish, enlarge, or abolish the powers of the Federal Government. It should be clear, then, who is the master and who is the servant in our constitutional system.

Explaining the sentiments that successfully guided the United States to freedom and victory in the American Revolution, James Madison wrote: "It is proper to take alarm at the first experiment upon our liberties. We hold this prudent jealousy to be the first duty of citizens ...." The freemen of America did not wait until usurped power had strengthened itself by exercise and entangled the question in precedents. They saw all the consequences in the principle and they avoided the consequences by denying the principle.

At the time the Federal Constitution of 1787 was adopted, one of the questions raised was: How could the liberties and reserved rights of the people be secured and protected should the Federal Government break loose from its constitutional restraints and begin usurping powers? In the Federalist Papers, both Madison and Hamilton addressed this concern by asserting that the State governments would act as the shields of State sovereignty to protect the reserved rights of the States. The former dwelled on the subject at considerable length, and the latter went so far as to term a State government the arm of resistance. It was the duty of the State governments, in other words, to take whatever measures were necessary to defeat all "schemes of usurpation."

At the time the Constitution was adopted, of course, it was clearly understood that any State, as a sovereign body, could secede from the Union if it chose to do so. Two States -- Virginia and New York -- actually made a point of asserting their right to secede from the Union within their very acts of ratification of the Constitution. 3 However, secession was regarded as an act of last resort. If possible, the States preferred to arrest the progress of evil in the event of federal usurpation without quitting the Union. It remained for Thomas Jefferson and James Madison to devise a practical and constitutional method of achieving this goal through a process known as State interposition and nullification.

Interposition and Nullification
In response to the passage of the Alien and Sedition Laws under the Adams Administration, the State legislatures of Kentucky and Virginia interposed their authority and nullified the objectionable laws. Jefferson penned the Kentucky Resolutions of 1798, while Madison wrote the Virginia Resolutions of that same year.

(Cont. on Pg 2)