The Founders did not Grant the Federal Judiciary the Power to Interpret the Constitution – By Robert Greenslade – Price of Liberty -
In order to understand this issue, it is necessary to begin with the basics. Contrary to popular belief, the Constitution did not consolidate the several States or their people into a single nation. The Constitution simply modified the federal system of government that had been established by the Articles of Confederation. The word federal has a very important meaning.
Shortly after his death in 1850, John C. Calhoun’s essay entitled A Discourse on the Constitution and Government of the United States was published in book form. The following excerpt is a concise definition of the word federal as it relates to the federal system of government established by the Constitution:
It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation.
As stated by Mr. Calhoun, the federal government is the States’ government. When the States adopted the Constitution, they created a common agent called the federal government. They empowered their agent, via the Constitution, with the authority to perform limited functions that would be difficult or impossible for the States to perform individually. If the federal judiciary had the power to interpret the Constitution, then the agent would be superior to the principals because it could circumvent its grant of power and nullify the Constitution through its rulings.
Thomas Jefferson discussed this principle in his draft of the Kentucky Resolutions of 1798. These Resolutions were written in response to an attempt by Congress to expand the criminal jurisdiction of the federal government through a set of laws entitled the “Alien and Sedition Laws.” Jefferson wrote:
The several states composing the United States of America are not united on the principle of unlimited submission to their general government; but…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 [and] delegated to that government certain definite powers…and…whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force…To this compact each state acceded as a state, and is an integral party, its co-states forming, as to itself, the other party…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…[Bold added]
The State of Virginia also adopted a set of resolutions in response to the “Alien and Sedition Laws.” These resolutions defined the nature of the Constitution and the character of the federal government. The Virginia Legislature also defined the Constitution as a compact between the several States. These resolutions paralleled Jefferson’s overview of the Constitution and re-affirmed the principle that the States, not the federal judiciary, had the power, in the last resort, to define the extent of the powers delegated to their federal government. The Virginia Resolutions stated in part:
[T]his 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 than 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 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………
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