In Constitutional Studies 1, we primarily covered one essential principle. That was an understanding that the states, being the sovereign parties to the contract, which is the Constitution of the United States, are superior in every respect to the product of that contract, the federal government. To better understand this reality, we also covered and discussed three foundational principles which are the principle of Deity, the Principle of Creation, and the Principle of Delegation. I believe that the best one line explanation of the relationship between that States and the federal government can be found in the James Madison, Report on the Virginia Resolutions;
The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.
In this episode, we will examine the processes in which federal usurpation may be constitutionally reversed. Our liberty documents today will be the James Madison Bonus Bill Veto, the Speech of Governor Jonathan Trumbull at the Opening of the Special Session of the Legislature, February 23, 1809, and the Resolutions of the General Assembly of Connecticut 1809.
The question then is, what is to be done when the executive, judicial or executive branch of the federal government takes action that is repugnant to the Constitution? When one branch of the government begins to constitutionally color outside of the lines, the first and obvious duty falls to the remaining branches.
The Bonus Bill of 1817 was legislation proposed by John C. Calhoun to earmark surplus federal revenue “the bonus”, as well as future dividends, from the recently established Second Bank of the United States for an internal improvements fund. Although President James Madison approved of the need and stated goals of the bill for improvements, he vetoed the bill as unconstitutional under his strict constructionist ideals. His veto message represents an important explanation by the “Father of the Constitution.”
The first paragraph in the veto letter is most important:
Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
There is a compelling argument to be made here. President Madison agreed with the aims and objectives of the bill. He felt that they were noble and in the best interest of the country. He also recognized that it is not for one man to decide. The fitness of a bill must always be decided by the clear delegation of powers found in the Constitution. Any other application of his presidential powers would soon lead to a government without limit or restraint.
Madison then examined the bill in relationship to the General Welfare Clause. He stated,
To refer the power in question to the clause would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper.
In other words, if the legislature justifies a bill by simply stating that it is in the general welfare of the people, then any law can be passed by simply including the words, “general welfare”. A common tactic of government today is to do exactly this. With this tactic, they exercise all powers beyond the scope of delegated powers.
The proper reading of the General Welfare Clause it to limit and restrict the powers delegated subsequent to the clause itself. Let us have a look.
First, we will look at a few cases where the General Welfare Clause might be used to create a law where no related delegation of powers exist. Assume that the federal government wanted to create gun free schools, or a welfare program, or farm subsidies or federal health care or a board of education, or wanted to fund abortion for the general welfare of the most selfish and irresponsible of the people. But these are so far fetched that such could never happen in America… right?
This next example describes the use of the General Welfare Clause to expand delegated powers beyond their original scope. The Constitution grants the federal government the power to borrow money. Assume that government borrows money to buy and gift cell phones to the poor among us. While this may be for the general welfare of a few, it does not meet the requirement to be for the General Welfare of the United States. Therefore, Obama phones are as unconstitutional as he is.
Now, let us examine an example of the proper use of the General Welfare Clause. The Constitution grants the federal government the right to establish post offices and post roads. If the government determined to confiscate churches in communities across the nation and convert these buildings into post offices, would that meet the requirement to establish post offices? Yes, of course it would, but does it also provide for the general welfare? Since this activity would meet one requirement but not both, it is unconstitutional.
In the case of the Bonus Bill, Madison saw that the objectives of the bill did in fact, comply with the General Welfare Clause. However, he could find no attending delegated power and subsequently vetoed the bill, stating that it was unconstitutional.
Oh, that we could have more of this in modern government. Sadly, the opposite is more often true. So, when the federal government completely drops the ball, what are we to do?
We’ll dig into that, right after this.
freedom is not free
An Embargo Bill was enacted. This negatively affected the states’ right of free commerce. The state of Connecticut recognized the threatening evil and took steps to defend states’ rights and the freedoms of its people. Governor Jonathan Trumbull called a special session of the Legislature to deal with the problem. This state’s actions serves as a nearly perfect guide to state nullification.
In his opening speech, Turmbull stated that the issue of the bill first came to his attention through resolutions that had been created in town meetings throughout the state. I find it interesting that the protection of the state first started with a spark of liberty in ordinary citizens who called meetings, discussed issues, provided solutions in the form of resolutions which they submitted to the Governor. It was always meant that the people themselves would be the last bastion of liberty and the last and final defense against the despot. In the case of Connecticut, the people knew and executed their duties.
The next step was for the governor to deliver the voice of the people to the state lawmakers who have delegated powers to resist the advancement of evil. This he did by calling a special session of the Connecticut state legislature.
Next we turn to the Resolutions of the General Assembly of Connecticut 1809 to examine the actions of the legislature. Again, this reads like a checklist for proper nullification procedures.
From this document we read,
Resolved, That to preserve the Union, and support the constitution of the United States, it becomes the duty of the Legislatures of the States, in such a crisis of affairs, vigilantly to watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people; and that a due regard to this duty, will not permit this Assembly to assist, or concur in giving effect to the aforesaid unconstitutional act, passed, to enforce the Embargo.
In this opening resolution, this opening volley, the legislature boldly affirms that it is their duty to vigorously watch and vigorously maintain the powers which rightfully belong to the states. This is an important first step as it defines roles and power and authority. It is interesting to note that their actions are declared constitutional. Therefore, laying to rest any federal assertion that an act of resistance, against the abuses of the federal government, is conspiracy, or treason, or a crime of any sort. In fact, the states’ actions are declared essential if the Union is to be preserved and the Constitution supported.
In part, the next resolution mentions and defends the Governor’s decision that no state assistance will be given in support of the unconstitutional law. In short, the federal government will have no ability to enforce their law in the state of Connecticut. It reads,
…declining to designate persons to carry into effect, by the aid of military power, the act of the United States, enforcing the Embargo, and that his letter addressed to the Secretary for the Department of War, containing his refusal, to make such designation,
A key part of any act to preserve states rights (nullification) is to withdraw all state support and prevent all state enforcement of the federal act that is being nullified. It is also important to note that necessary notifications have been made. In this case, to the Secretary of War. This notification continued in the next resolution,
Resolved, That his Excellency the Governor be requested to communicate the foregoing resolutions to the President of the United States, with an assurance that this Assembly regret that they are thus obliged under a sense of paramount public duty to assert the unquestionable right of this State to abstain from any agency in the execution of measures, which are unconstitutional and despotic.
I laughed out loud as I read this resolution. With great respect and decorum, the legislature addressed the President and informed him with absolute firmness. With great respect and decorum, the legislature addressed the President and called him unconstitutional and despotic. The point here, however, is that they did not go before the President, seeking his blessing or permission. Instead, they properly exercised their duties with firmness to preserve the powers that rightly belong to the states or the people.
The question then, is how can the duties and commitments of the state legislature be brought into action state wide. The next resolution seems to answer this question with great efficiency,
Resolved, That the persons holding executive offices under this State, are restrained by the duties which they owe this State, from affording any official aid or co-operation in the execution of the act aforesaid; and that his Excellency the Governor be requested, as commander in chief of the military force of this State, to cause these resolutions to be published in general orders: And that the secretary of this State be and he is hereby directed to transmit copies of the same to the several sheriffs and town clerks.
Wow! This a a bold and decisive step. Every person holding office in the state are directed to offer no support of any kind. All are restrained from any action which will bring the repugnant constitutional abuse into execution. It is important to note that from the military to the clerks of the smallest town, all are informed. By this, the state of Connecticut became a united force, defending their state sovereignty, defending states rights, defending the liberty of the people and maintaining a free and open commerce.
In the closing resolutions, the Governor is directed to send the completed resolutions to the President of the Senate, and Speaker of the House of Representatives, in the commonwealth of Massachusetts, and to the Legislatures of sister States. Consider the power and efficiency of the forgoing process to preserve liberty. Not only is the state of Connecticut fully engaged, but sister states are afforded an opportunity to join their voices to that of Connecticut.
When the sovereignty of one state is placed in jeopardy, it is impossible to conceive of a circumstance wherein all states are not threatened jointly. It is important to understand and remember every action discussed here began in the bosom of a few common men who gathered, wrote simple resolutions and delivered them to the appropriate elected official. The key is and always has been in the hands of the people.