I have written in the past about unconstitutional usurpation of Constitutional Sheriffs’ arrest powers. I have also mentioned that whimsical and hastily made decisions that attempt to eradicate by sweeping measures time-honored common-law rules and principles are a threat to the respective states’ sovereignty.
As I have also mentioned, if the citizenry of a state allows its Executive or Legislative branches to disenfranchise it and remove its choice to elect its own chief law enforcement officer in the respective counties or parishes as the case may be, then not much can be done but to educate that citizenry about the folly of its ignorance in this regard. It is, ultimately, although I would contend only, through a state’s constitution that a citizenry can make choices ultimately surrendering their sovereign right to govern themselves. This is of the very essence of the privilege of our liberty and the responsibility of our freedom earned by the blood of our forefathers in their violent separation from the tyranny of Britain.
Sadly, many hastily made decisions to implement immediate regulatory measures, which decisions are formulated in the face of apparent (or real) crises, threaten to erode the very fabric of self-governance and constitutional republicanism upon which this country was founded. This is true because the extent and magnitude of these crises are leveraged as justifying an end-run around the proper constitutional means by which such actions must occur.
This is true, as well, of the debate concerning gun control, because at its root the arming of the citizenry (whether or not one agrees it is an individual right under the Second Amendment, or, only a collective right of each states’ constitutionally authorized militia (the latter of which is a right every Justice on the Supreme Court save perhaps Justice Kagan has agreed the amendment guarantees)), is ultimately a right that can only be regulated and controlled by the collective wisdom of the citizens of the respective sovereign states. But, see my recent exposition on the subject, which includes unequivocal support for the former proposition, that the right to bear arms is indeed an individual right. Second Amendment Right to Bear Arms is an Individual Constitutional Right
An historical look at the Constitutional Convention reveals the true significance of state sovereignty within the greater plan for our fledgling federalist nation. The “plan of the convention” as can be elicited from the historical materials, United States Supreme Court opinions, and the text of the Tenth Amendment draws a basic distinction between the powers of the newly created federal government and the powers retained by the preexisting, sovereign states. Chief Justice Marshall explained in the landmark decision of Sturges v. Crowninshield, 4 Wheat. 122, 193; 4 L.Ed. 529 (1819) that “it was neither necessary nor proper [for the Convention, and ultimately the Constitution] to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument.” (emphasis added).
This classic reiteration by Chief Justice Marshall directly endorsed Hamilton’s reasoning in the Federalist No. 32, that the plan of the constitutional convention did not contemplate “[a]n entire consolidation of the States into one complete national sovereignty.” Only a partial, and limited consolidation was envisioned, in which “the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.” The Federalist No. 32, at 198 (emphasis added).
The text of the Tenth Amendment unambiguously affirmed this principle:
“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.”
The significance of this formulation and the subsequent jurisprudence interpreting the Tenth Amendment (at least, for the most part, up until the ill-advised and unfortunate Garcia decision, which, for a time reduced the Tenth Amendment to little more than a truism as stated by some commentators) is that whatever powers the individual states had before the new federal government was created were forever preserved and galvanized against federal usurpation.
Moreover, any powers delegated to the United States, as opposed to the States’ retained, yet unwritten powers of sovereignty, had to be expressly vested in the new government by the Constitution itself. What this means to me is that federal powers cannot be created by implication, imaginative interpretation or by the stretching of the words and language of the Constitution; those powers have to be expressly granted to the federal government. Further, in order to divest a State of its retained powers of sovereignty, the Constitution also had to expressly do that. Again, doctrines of implication and interpretive wizardry designed to create substantive rights guaranteed and restricting prohibitions imposed by the Constitution cannot suffice to divest the States of their retained sovereignty, because these rights and restrictions, respectively, and the means to create or impose them, respectively, simply do not exist in the document itself. And, by express design in the architecture of that instrument, this is the case.
One of the most, if not the most, inherent attributes of State sovereignty is to protect its people, i.e., public safety – perhaps, as Justice Campbell of the Michigan Supreme Court noted long ago, the most important prerogative of the State. As another of the Big Four Justices noted, courts, at least, have been intelligent enough to know to preserve these principles by reference to the organic document of government that is the respective states’ constitutions until the people themselves are unwise enough to undo them.
Although much criticism can be lodged at the Delaware Attorney General and harsh admonitions can be lodged against its General Assembly for attempting to usurp the Constitutional Sheriffs’ arrest powers in that state, it has to be pointed out that it is the individual citizens in that state who must realize that they are on the cusp of surrendering one of the most fundamental rights that they have. In allowing the attempted divestiture of the Sheriff’s’ rights, indeed their duties, to protect them, the citizens of Delaware threaten to surrender a right that may never be recovered absent some epic event. While these events touch upon the Tenth Amendment because they threaten to erode Delaware’s power to govern its own constitutional and sovereign destiny, it is ultimately up to the State itself (and more particularly its citizenry) to properly protect its sovereign powers. That starts with respecting its own Constitutional History in the Plan of the Convention.
Indeed, we are still today dealing with a new federal government and our collective states’ rights of sovereignty and the powers and duties that follow are a retained, original and unflappable reality that long preceded the formation of the new federal government. It is up to each state (and particularly to each of its individual citizens) to assert and protect these rights to the fullest extent possible.
“The power of the federal government would be augmented immeasurably if it were able to impress into its service – at no cost to itself – the police officers of the 50 states.” Printz v. U.S., 521 U.S. 898, 922 (1997). James Madison wrote that “[t]he practicality of making laws, with coercive sanctions, for the States as political bodies, exploded on all hands.” 2 Records of the Federal Convention of 1787, p. 9 (M. Farrand ed. 1991).
At least, at the convention, the States were wise enough and sensible enough to realize the dangers of surrendering the liberty of their Citizens to the powers of a centralized government. Thus they objected to the proposition of allowing coercive power to be written into the Constitution.
And the United States Supreme Court made clear in Printz that the federal government could not conscript the states’ police forces; it could not employ the law enforcement officers of the several states to perform a function or execute any law that Congress purported to have the authority to pass. Such power was as impotent as the law from which it sprang was not viable.
But what of the voluntary surrender by an executive officer of state government of this fundamental right and liberty of a state’s citizens? What happens when a political body, i.e., the legislature, the judiciary, and / or an executive acts in ways, within its own state, that eviscerates the liberties of its own citizens and surrenders them, involuntarily, to some other power or entity?
Accountability of local and state politicians is the only way that the promise and design of the U.S. Constitution, and by extension, of each of the respective states’ constitutions, can thrive and function. Such purported lawful actions and conduct are a usurpation of the Citizen’s inviolable independence to choose the means by which he or she shall be regulated. Such actions, when executed without proper legal and political procedures, threaten the very fabric of the balance between federal and state power, because the power of the former is derived from the latter. Thus, if the state purports to act without delegation or authority for that particular function by its own People, it has violated the solemn promise to protect its own and, in doing so, creates a void in which federal power can breed and fester.
To be sure, the United States Supreme Court “never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations.” FERC v. Mississippi, 456 U.S. 742, 761-62 (1982).
This fairly solid barrier placed between federal regulation and a state’s retained sovereignty is rooted in the fundamental concept of federalism that is ingrained in the Constitution. The states, in agreeing to enter into that charter, surrendered not one jot or tittle of their sovereignty when it came to the orderly administration and maintenance of public safety and welfare. Not only is this one of the “inherent attributes of sovereignty” retained by the States per the Tenth Amendment, but too, it is one that is expressly reserved to them by the Second Amendment militia clause. As mentioned earlier, with the exception of Justice Kagan (whose position on the issue I am not familiar with) the remaining Justices on the current Supreme Court (liberal and conservative) who might disagree that the Second Amendment contains and “individual” right, they all agree that, if anything, it preserves the individual states’ rights to maintain an organized militia. This is evident not only in the writings that preceded the Constitution, but too it has pervaded judicial decisions related to the subject since.
This principle does nothing to protect the states from themselves if its citizens do not attempt to assert their constitutional right to the maintenance of a republican form of government. See US Const Art IV, § 4 (“The United States shall guarantee to every State in this Union a Republican Form of Government….”). If by the act of a single executive official, local citizens are stripped of their power to choose who performs the law enforcement function in their own counties, then they have been disenfranchised without the ability of recourse. This is what has occurred in Delaware, where the Attorney General, on his own volition, has written an opinion purporting to remove the Sheriffs’ arrest authorities in that state. And, sadly, it is occurring elsewhere by other inappropriate means. See, e.g., Connecticut, Massachusetts, and Pennsylvania. If, as is the threat in Delaware and perhaps Pennsylvania, these measures are undertaken by the legislative bodies of these respective states, the incarnation of the citizens’ will in those sovereign jurisdictions, then absent a successful constitutional challenge, the people will be deemed to have voluntarily surrendered their rights to choose by free elections, who will shield and protect them within their own communities. The further removed that authority is from accountability to the people, the easier it is for the former to suppress the latter without fear of recourse.
To be sure, the executive branch (whether through the governor or the attorney general) cannot do this alone. As Madison expressed it: “[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” The Federalist No. 39, at 245. In this instance, what is even more egregious is that this has occurred without the expression of federal power, however unlawful, exerted upon the state. But that expression is not far behind. For the natural consequence of a vacuum of power, especially that concerning public safety and crime, is that a stronger force will be called upon to occupy.
It is for the Citizens of every state to choose their own constitutional destiny and realize the promise of liberty and the responsibility of freedom. Let not a crisis be the catalyst to cause the Citizens of the respective states to abandon the former and withdraw from the benefits of the latter, and thereby, however unwittingly, surrender their individual liberties to an unknown fate.
Happy New Year!
Amicus Curious 