I can’t say that I know who Ben Lewis is, except a blogger over at the Tenth Amendment Center. That is all I know about him. But suffice it to say, that for at least today, he’s a kindred spirit as he starts out his critique of conservative radio entitled Blazing Ignorance this way:
In my younger days I used to be a regular consumer of conservative talk radio. How convenient it was, I thought, that I could just set my dial to the right frequency and be fully informed about the issues of the day.
I have long since abandoned talk radio after coming to the realization that, no offense, most of the personalities were pontificating blatherskites who were far less informed than their on-air demeanor would indicate. Even so, in moments of weakness, I occasionally find myself flipping the radio to AM just to see what I’m missing.
Fortuitously, Monday was one of those days. I was driving in my car around lunchtime and nothing on my iPod sounded appealing, so I decided to see what Glenn Beck was talking about. As it turned out, Beck was out and Buck Sexton was filling in. To my surprise and delight, during a discussion of the day’s trending stories on theblaze.com, Sexton discussed a piece about Missouri’s efforts to nullify federal gun control laws.
Lewis is far more patient, I thought as I started reading, because the farthest I will stray back onto the reservation is Mark Levin where I don’t find myself screaming at the radio as I’m driving, eliciting the stares of strangers as if I am some kind of loon. That’s not to say Mark Levin doesn’t have one foot still on the reservation, not quite understanding that laws against certain kinds of behavior do not prevent them… but I digress.
I was really just impressed that, to Sexton’s credit, the topic was being covered on national talk radio. The host was complimentary, remarking, “I think this is fascinating, this battle that’s playing out, state by state, of the federal government versus the states that are trying to protect the constitutional rights for those who live in the state against the federal government.”
But unfortunately this sentiment was short-lived because Sexton kept talking. “It (nullification) is the reverse of how it’s supposed to be. It’s supposed to be the federal government that says, ‘No, no, no states, hold on a second. You have a constitutional right to X, you cannot infringe (beyond) that.”
Face, meet palm.
Isn’t that just like a conservative? States have the constitutional right for the Federal government to tell them what their rights are – especially when there are a pseudo conservative Congress and President inhabiting the Beltway. They are very afraid to spill the secret that progressives and statists have been keeping well hidden for years. The secret that the Federal government was never intended for arbitrary rule, deciding what its own powers would be. They have the idea of the revolutions of 1776 and 1798 exactly backward. In fact, most don’t know about the revolution in 1798 or what the supposed “Era of Good Feelings” was all about. My Modern Whig friends should be delighted to hear that the original Whig party was born of opposition to arbitrary rule as inheritance from the 1798 political revolution that was led by Thomas Jefferson, James Madison and Aaron Burr against the Federalists and led to the Judicial Reform Acts of 1802 and 1803. The Federalists, sensing a wane in popularity and power had attempted to pack the courts with activist judges who subsequently appointed themselves as sole interpreters of the Constitution.
Sadly, even with the Judicial Reform Acts of the early 19th century, we are still fighting that battle today with both parties using the courts for everything except for which they were intended – justice and maintenance of the rule of law.
The Supremacy Clause does not mean that the Federal government can make a law, any law it wants, and it then becomes the law of the land. If that where the case, then there would be absolutely zero purpose in the delineation of powers in Article II section 8 – The Powers of Congress.
As Thomas Jefferson writes in his decent from the creation of a central bank:
I consider the foundation of the Constitution as laid on this ground: That ” all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition….
To lay taxes to provide for the general welfare of the United States, that is to say, “to lay taxes for the purpose of providing for the general welfare.” For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.
It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect.
So, what power the government doesn’t get from the General Welfare Clause, conservatives would certainly grant with the Supremacy Clause. But that still is butchering the meaning because of the accepted rule of construction, that in interpreting a line of text within a document, it must be done in a way that provides meaning to the rest of the document, not in a way that renders it meaningless. In other words, the Supremacy Clause applies to the delineated powers, and cannot be used to establish others that cannot be obtained through the amendment process, especially those that would infringe on other rights and protections provided elsewhere in the Constitution.
The Constitution is, after all, only a piece of paper. It can’t enforce itself. And if the powers that be are intended to be bound by it get to decide what it means – as in being the keepers of the rule book while writing all the rules – well, any rights or guarantees of rights won’t last very long. All things considered, it is likely 2/3 gone as it is. No wonder many conservatives now weep for the republic. But even in all their fear, they simply don’t learn the right lesson, that the answer to the enforcement puzzle is: The states.