States’ Rights Strengthened by Recent Supreme Court Decisions

Written By: The WealthCycles Staff

Former federal judge Andrew Napolitano wrote in his book, The Constitution in Exile, that from 1937 to 1995 the federal Supreme Court hadn’t found anything unconstitutional proposed by their federal branch brethren—amazing.

Napolitano’s observation contrasts two recent opinions that strengthen federal views on State independence, and local rights.

The “free and independent” States, as it is written in the Declaration of Independence, are each melting pots for ideas, and Freedom in the 50 States: 2013 explains in a 1 minute, 43 second video many of the benefits that freedom of choice on a local level ensures. As Thomas Jefferson stated on interpretation:

On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates.

Let us indeed turn the dial back, but not back in time to the ratifying conventions, where state representatives clearly explained to citizens (as they still do today), how “the constitution was supposed to be a document that was empowering; so that, if it was not listed there as a power of Congress, they didn’t have it.”

Rather than turning the dial that far back, look to almost a century later, where public understanding of the construction of our republic was still strong—stronger than today, for sure.

Newspaper clippings from the winter before the civil war reflect this.

There needs to be no bloodshed… unless it is forced upon the national authority

On November 21, 1860, before Lincoln announced “there needs to be no bloodshed… unless it is forced upon the national authority… to collect the duties” states hadn’t agree to, here's how Northerners saw their Constitution:

We believe that the right of any member of this Confederacy [the United States] to dissolve its political relations with the others and assume an independent position is absolute—that, in other words, if South Carolina wants to go out of the Union, she has the right to do so, and no party or power may justly say her nay.
This we suppose to be the doctrine of the Declaration of Independence when it affirms that governments are instituted for the protection of men in their lives, liberties, and the pursuit of happiness; and 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. --Cincinnati Daily Press

States such as South Carolina thought certain taxes (and imposts, Lincoln reminds) were not constitutional, and so seceded that December. Six other states followed in the months to come.

On December 17, 1860, the New York Daily Tribune editorialized:

We have repeatedly asked those who dissent from our view of this matter [the legality of peaceful secession] to tell us frankly whether they do or do not assent to Mr. Jefferson's statement in the Declaration of Independence that governments 'derive their just powers from the consent of the governed…
We do heartily accept this doctrine, believing it intrinsically sound, beneficent, and one that, universally accepted, is calculated to prevent the shedding of seas of human blood.
[I]f it justified the secession from the British Empire of Three Millions of colonists in 1776, we do not see it would not justify the secession of Five Millions of Southrons from the Federal Union in 1861.

The Kenosha, Wisconsin, Democrat editorialized on January 11, 1861, that "The founders of our government were constant secessionists. They not only claimed the right for themselves, but conceded it to others. They were not only secessionists in theory, but in practice."

When Lincoln said we were one nation, it was not true: there never was one nation. But, one couldn’t be blamed in thinking so, after Chief Justice Marshall’s “claim” regarding Marbury vs. Madison, has been repeated over and over by centralists:

In the name of the people, the federal government claimed the right to legitimately control all individuals or governments within the American territory.

This was untrue then, as it is today.

The United States represents a federal union, a confederation of free and independent states. It is this recent resurgence of honest principles that is being mirrored in recent Supreme Court opinions.

DOMA - Federal Defense of Marriage

Starting first with the most recent, the Defense of Marriage Act, no matter what your personal opinion is, the federal government shouldn’t have one.

Nothing in Article 1, Section 8, gives this power over, from the states.

Local decisions should remain local, and citizens who prefer state government involvement in relationships can vote that way; in the state of New Mexico, there are no rules… Gaaasp!

ACA – Centralized Federal Healthcare

Similarly, more than half of all States have resisted centralized healthcare, with one Governor saying “he will not be party to socializing health care and bankrupting my state in direct contradiction to our Constitution and our founding principles of limited government.”

The surprising part is that the step-back seen in the federal agenda was largely a result of sheer quantity of states taking the option. As Utah Senator Wayne Niederhauser said recently: “[If] we want to be a sovereign, we have to act like one.”

With the ACA ruling, the federal justices recognized states’ rights (page 4, section 5, “decline to comply”), by saying federal withholding of Medicare funding to states couldn’t be a punishment for opting out. As we wrote June 28, 2012:

This opinion eliminates the teeth in the law from the perspective of the federal government, the threat of withholding Medicare funds—blackmail.

One example in practice today of this type of blackmail is where the national government withholds highway funds to coerce policy complicity.

The justices made an explicit statement on this issue—even in the case of a state not implementing the law—nullification.


Nullification of what a state and its citizens see as overreach by federal planners not only was permitted by federal justices on both accounts, but functionally, ignoring unconstitutional decree obviously remains the “rightful remedy” employed today.

States are “duty bound to resist,” said Madison and Jefferson in 1798; the two subjects above are not the only ones on which we haven’t disappointed Madison and Jefferson.

In closing, it was on the eve of the Civil War that the Providence, Rhode Island, Evening Press warned Lincoln:

"[T]he employment of force" against citizens who no longer consented to being governed by Washington, D.C., "can have no other result than to make the revolution itself complete and lasting, at the expense of thousands of lives, hundreds of millions of dollars, and amount of wretchedness fearful to contemplate, and the humiliation of the American name."

The Evening Press then reminded its readers that in the American Revolution the colonists rejected "the Divine right of Kings" to do whatever they wanted to their subjects.

“Our forefathers disputed this dictum and rose against it, fought against it, and by successful revolution accomplished their independence of it.
“In its place they substituted the doctrine that ‘to secure human happiness, governments are instituted among men, deriving their just powers from the consent of the governed…’”

So which is it? Are American citizens still masters, rather than the servants, of government?

The people are master, was the answer clearly on display throughout the Northern Editorials on Secession “out of reverence for the natural law principle of government by consent of the governed."

Will we remain the land of the free by delegation of limited, explicit powers to a central government, and then jealously ensuring via the State's right to nullify, that the central government exercises only what is asked of it on behalf of the citizens of the “free and independent” States.

Chief Justice John Marshall, then Lincoln, worked to reverse States’ rights; much later Adolph Hitler enshrined a top-down denial of sovereign people or their local States:

“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” -- Mein Kampf

testiomials When Lincoln said we were one nation, it was not true: there never was one nation. But, one couldn’t be blamed in thinking so, after Chief Justice Marshall’s “claim” regarding Marbury vs. Madison, has been repeated over and over”

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