Reprinted from The Patriot Post, May 17, 2013
When Mrs. Powel asked Benjamin Franklin after the Constitution was drafted, “Well, Doctor, what have we got, a republic or a monarchy?” he famously replied, “A republic, if you can keep it.”
We will now find out.
The Declaration and the Constitution offer three firewalls, three levels of protection, to keep the republic from collapsing into some form of tyranny. Plan A is not working. Plan B is viable, but is being adopted slowly and perhaps too late. Plan C has not been tried.
The problem has become urgent now that the federal government, created to be subservient to the states, has completely overwhelmed them and routinely dictates how things must be done in every aspect of American life. Most of this smothering control is in clear violation of Constitutional limits. The bully now runs the playground. We no longer have fifty laboratories of freedom, and soon may have no freedom at all.
In the words of Charles Evans Hughes1 on the 150th anniversary of the Battle of Bunker Hill, “When we lose the right to be different, we lose the privilege to be free.”
The founders worked hard to protect us from the possibility that the new government might soon overreach its carefully-drawn boundaries. The first firewall was to assign each part of the federal government its own specific authorities, expecting each branch to defend those prerogatives and responsibilities from encroachment by the others. But the executive and legislative branches have completely surrendered their right to decide whether actions of the other branches are Constitutional or not; today we assume the judicial branch has complete say in the matter. Congress and the President freely create unconstitutional law and count on the Supreme Court to either stop it or let it pass, depending on their goals.
If one branch has complete discretion over what the Constitution means, it has far more power than was intended; Jefferson warned2 us that allowing this situation to develop with the judicial branch in particular would lead to the Court becoming despotic. Today we see it in action.
So Plan A, the separation of powers, has failed. Our lives are often dominated by a single swing vote at the Supreme Court. When those favoring the heavy hand of government obtain a bare majority over those who favor Constitutional freedom, tyranny reigns. The current cost of just one of those decisions now numbers over fifty-four3 million lives, with perhaps a million more being lost each year.
The second firewall was the strict reservation to the states of all rights and authorities not specifically assigned to the new government. But Plan B has also failed: just like the various branches of the central government, the states have abandoned their rightful place in protecting the rights and freedoms of the people. They have capitulated to the idea that the federal government is supreme; if an appeal to the Supreme Court does not right the wrong, then that wrong stands unchallenged.
The federal government encourages that belief. When Governor Sam Brownback signed legislation4 declaring that federal actions violating the Second Amendment would not be honored in Kansas, Attorney General Eric Holder declared5, “… [the Kansas law] directly conflicts with federal law and is therefore unconstitutional…. Under the Supremacy Clause… Kansas may not prevent federal employees and officials from carrying out their official responsibilities.”
A minor point has escaped Mr. Holder: the Supremacy Clause of the Constitution cannot authorize ‘official responsibilities’ which are specifically forbidden by other clauses of the same document.
In Federalist 466, James Madison assured the voters that today’s situation would never arise:
But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every [State] government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted…. That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both … that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.
However, here we are. As we watched routine TSA violations of the Fourth Amendment at the Houston airport, a police officer shrugged and said to me, “That whole area is federal. They do whatever they want.” Indeed they do, and apparently they think we must do whatever they want as well.
The Texas Attorney General is reported to have said his entire job now consists of going to work, suing the federal government, and going home. This is unacceptable. We have better things to do with our lives and our money than to have both of them squandered by the tyrant class. That’s what 1776 was all about, after all.
What is our alternative, when Plan A and Plan B have both failed us? Plan C is waiting in the final phrase of the Tenth Amendment7, which says the powers not delegated to Washington are “reserved to the States respectively, or to the people.” That’s us. The people.
The Declaration of Independence, and the Constitution implementing its principles, are based on the belief that “we the people” are sovereign. The city, county, state, and federal governments work for us. We delegate some of our authority to them in order to protect our lives, our families, our property, and our freedom to live our lives in peace; but we never give up that authority, and we can take it back if needed.
We have as much authority as anyone else to decide whether federal actions are Constitutional; in fact, we have more authority than Washington, because the federal government was established and limited by us, not vice-versa. When a State declares that a particular federal action violates Constitutional authority, and therefore will not be honored in that State, it is acting on behalf of the people, and it is speaking with the authority delegated to the State by the people who live there.
What if the State you live in fails to act?
The next line of defense must be “we the people.” But how? Acting within what organization, what process, what leadership, if both the federal and state authorities have abdicated their responsibility? When the first two firewalls have failed, when both the federal and state representatives have acceded to tyranny, what can we do?
Perhaps the next place we can make a stand is at the county level, or in groups of counties.
At this level there are elected governments and independent law enforcement entities, both of which are accountable to the people within those jurisdictions and act within their sovereign, delegated authority. The County Sheriff in particular works for the people, not for the state or the federal government, and has taken an oath to support the Constitution and defend the citizens against all enemies, foreign and domestic.
But counties do not typically have the authority to make law, in the same sense that states and the federal government do. How do we declare things to be unconstitutional, acting as “we the people” in a specific county, and enable the County Sheriff — who has the authority, the organization, and the processes to enforce it — to do so?
If this were done, each such county could become home to people and companies that welcome the freedom from the costs and burdens being imposed by an abusive federal government, and reap the economic benefits of that freedom. The more counties that take that stand, the more pressure on their State to do likewise.
Part 2 of this series, “Plan C: County Freedom,” will explore how this approach can be implemented and the barriers to be overcome.
Gary Henderson is author of “Freedom. You Can Handle It. But Hurry!”8