Publius-Huldah's Blog

Understanding the Constitution

What Should States Do When the Federal Government Usurps Power?

Advice From James Madison, Father of the U.S. Constitution.

By Publius Huldah

1. What can a State – or several States – do to resist encroachments & usurpations by the federal government?

2.  Federalist No. 46  (7th para) discusses how individual States or several States carry out resistance to the federal government’s unconstitutional encroachments. If a particular State takes an action which the federal government doesn’t like, but which has the support of the People of that State, the federal government can’t do anything about it unless it is willing to use force.

When several States oppose an unconstitutional encroachment by the federal government, Madison says they have powerful means of opposition:  the disquietude of the people, their repugnance (e.g., baby-killing enshrined into public policy), the Peoples’ refusal to co-operate with the officers of the federal government; the opposition of the State officials; and all those legislative devices State Legislatures can invent to thwart & impede the federal government in its unconstitutional schemes.

So, in para 7, Madison contemplates that not all States will oppose unconstitutional encroachments by the federal government. But he shows that this need not impede the States who do.  Such States need not implement in their States the federal government’s lawless usurpations.  Have we forgotten how to just say, “NO! You have no authority under the Constitution to do this, and the Sovereign State of X and the Sovereign People of the State of X won’t permit this.”  If we have taken the Oath to support the Constitution (Art. VI, clause 3), then we are bound by Honor to support it!

3.  Note that Madison doesn’t say the States should file lawsuits in federal court. And WHY would Sovereign States, which formed a federation for the limited purposes enumerated in Art. I, Sec. 8, U.S. Constitution; ask one branch of the federal government (judiciary) to opine on whether a “law” approved by the two other branches (legislative & executive) exceeds the enumerated powers of Congress or encroaches on the reserved powers of the States and the People (10th Amendment)?  All three branches of the federal government have been unified against The Constitution, the States, and the People for a very long time!  Why do States put themselves in the position of supplicants to a Court which has already shown itself to be contemptuous of the Constitution, and of the States’ and The Peoples’ reserved powers?

Furthermore, the Supreme Court is not even the ultimate authority on the meaning of the Constitution!  Alexander Hamilton said federal judges may be impeached & removed for usurpations (Federalist No. 81, 8th para); the People are “the natural guardians of the Constitution” as against federal judges “embarked in a conspiracy with the legislature”; and the People are to become “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.”(Federalist No.16, 10th para).

4.  In para 8, Madison discusses a “general alarm” among the States as to encroachments by the federal government. Here, Madison contemplates concerted “plans of resistance” among the States; and Madison says it may come to a “trial of force” if a crazed federal government doesn’t back down. In para 10, Madison says that the federal government’s “schemes of usurpation will be easily defeated by the State governments, who will be supported by the people”.

5.  In para 9, Madison discusses the federal government’s initiation of a “trial of force”.   But who would fight for the federal government?  Madison spoke of the regular Army as the force used by the federal government.  But that has been the Army of our children and neighbors’ children!  [We need not fear them unless we permit aliens to serve in our armed forces.]   The federal government does have, here & there, those heroic, noble, and brave men who shoot nursing mothers in the forehead, young boys in the back, and gas & apparently incinerate men, women & children. How many are they?  Then there is Obama’s personal “civilian national security force”.  Has it been established?  Even so, would they be honorable men, or another collection of thugs?  In any event, Madison said, “…it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.”

6. When we quote James Madison and The Federalist Papers on what States may do when the federal government has encroached upon the powers reserved by the States and the People; we quote a high Authority on The Constitution. James Madison is the Father of the Constitution,  and the author of many of the Federalist Papers.   States act lawfully when they follow such  guidance of James Madison. When the federal government descends into lawlessness & tyranny, The States and The People may protect and preserve their Constitution – as they are already sworn to do.

7. Yes, the ultimate authority resides in The People.  But this does not mean that The People should – or need to – initiate a show of force.  Remember the Rev. Dr. Martin Luther King!  He put on his clerical collar and went out into the streets with others to protest State LAWS which enforced segregation.  They used non-violent civil disobedience:  Black people sat down at “white’s only” lunch counters!  Black people sat in the front of the buses.  They did not initiate force.  The moral superiority of their position could not be denied, and they won.

8.  We have Our sacred Constitution.  The most important concepts for you to learn are these:  (1) ENUMERATED POWERS (2) Why neither the “GENERAL WELFARE“, the INTERSTATE COMMERCE nor the “NECESSARY & PROPER” [see linked paper at para 13] clauses authorize Congress (or the President or the FEDERAL COURTS ) to exceed their enumerated powers (3) The true meaning of the “RULE OF LAW” and how that differs from the “Rule of Men”; (4) What is “FEDERALISM“, and (5) The origin of our Rights and why you must NEVER speak of  “constitutional” rights. My papers on RIGHTS explain the moral superiority of our position. You must learn why our position is morally superior to that of the statists. And you must be prepared to explain it at all times.

May God be merciful and grant us national repentance and a peaceful political resolution.

April 3, 2010; revised April 16, 2011

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April 3, 2010 - Posted by | Resistance to tyranny, States Retained Powers, States Rights, Usurpations of power

17 Comments »

  1. […] ►In Federalist No. 46 (last half), Madison shows how individual States or several States carry out various degrees of resistance to the federal government’s unconstitutional encroachments.  See also: What Should States Do When The Federal Government Usurps Power? […]

    Pingback by Constitutional Convention: Mark Levin Refuted | American Clarion | September 16, 2013 | Reply

  2. […] ►In Federalist No. 46 (last half), Madison shows how individual States or several States carry out various degrees of resistance to the federal government’s unconstitutional encroachments. See also: What Should States Do When The Federal Government Usurps Power? […]

    Pingback by Mark Levin Refuted: Keep the Feds in Check with Nullification, not Amendments! | The Federal Observer | September 15, 2013 | Reply

  3. […] ►In Federalist No. 46 (last half), Madison shows how individual States or several States carry out various degrees of resistance to the federal government’s unconstitutional encroachments.  See also: What Should States Do When The Federal Government Usurps Power? […]

    Pingback by Mark Levin Refuted: Keep the Feds in Check with Nullification, not Amendments! « Publius-Huldah's Blog | September 15, 2013 | Reply

  4. [...] live up to our Framers’ expectations as set forth throughout The Federalist Papers?  See also, What Should States Do When the Federal Government Usurps Power? for advice from James [...]

    Pingback by Nullification: Smacking Down Those Who Smack Down The Constitution « Oath Keepers of Orange County, CA | April 18, 2011 | Reply

  5. [...] we live up to our Framers’ expectations as set forth throughout The Federalist Papers? See also, What Should States Do When the Federal Government UsurpsPower? for advice from James [...]

    Pingback by Nullification: Smacking Down Those Who Smack Down The Constitution « Veteran Patriot | April 18, 2011 | Reply

  6. [...] live up to our Framers’ expectations as set forth throughout The Federalist Papers?  See also, What Should States Do When the Federal Government Usurps Power? for advice from James [...]

    Pingback by Nullification: Smacking Down Those Who Smack Down The Constitution « Bonfire's Blog | April 18, 2011 | Reply

  7. Fascinating article! So how do the people go about removing someone like Sotomayor and Kagan? Obama and Congress will just say they were approved and only we can dismiss them, which they won’t.

    Comment by Semper Fi | December 19, 2010 | Reply

    • Thank you, Semper Fi. The only lawful way to remove federal judges is by impeachment. They serve during “good behaviour” only (Art. III, §1). It is not really true that they have “lifetime appointments”! They may keep their seats only as long as they behave. Actually, it would be easy to get rid of them if we would only elect people to the House and Senate who have the spine to do what needs to be done. Alexander Hamilton says in Federalist Paper No. 81 (8th para), that they can be impeached for “usurpations”. THAT is a ground which applies to most of them.

      Also, see Art. II, §4: “Misdemeanors” doesn’t necessarily mean a crime. Instead, Webster’s 1828 American Dictionary defines “misdemeanor” to include “mismanagement”, “fault”, etc. Our problem is that our People don’t care about Right & Wrong. They don’t want to take the heat. Far better to ignore the problem, open a can of beer and watch TV.

      Comment by Publius/Huldah | December 19, 2010 | Reply

  8. Interestingly, the Federalist Papers use the terms, “federal government”, “general government”, and “national government” interchangeably! That is because with respect to that very small number of enumerated powers delegated to it, the “federal”, “general”, “national”, or “central” government was to be just that!

    The Sovereign States and the People retained all powers not delegated to the “national” government.

    And THAT is the federal system: A confederacy of Sovereign States united for limited and specified purposes with a “federal” “national”, “central”, or “general” government to which is delegated power to give effect to those limited and specified purposes.

    That is what Our Framers gave us. But it started to fall apart when the American People [blind, stupid Fools!] decided they wanted the federal government to protect them from the challenges of life.

    Comment by Publius/Huldah | September 3, 2010 | Reply

    • Yes PH,

      the people asked the central government to make the laws to protect them from themselves. However the many Congresses and Administrations did not have the Constitutional powers to pass a single one the thousands they issued.

      Just because they operate in ignorance of the laws is no excuse for violating the laws of the nation. As the IRS tells the people every day ignorance of the law is no excuse and the courts back this false belief. The central government is no different than the hole in the wall gang that some areas of the old west.

      Neither of them had the backing of the rule of law, they existed because of the rule of force of arms. Can we say, dens of thieves protect each other?

      Comment by Lock Piatt | September 3, 2010 | Reply

  9. I was directed to this site by the olbroad.com this morning, and I consider that my blessing for the month of May. I can’t describe how happy I am to have this resource available while I work my way through the Federalist Papers* and the Anti-Federalist Papers**.

    *again, only paying attention this time
    **for the first time

    Comment by Dan | May 22, 2010 | Reply

  10. [...] This post was mentioned on Twitter by heather . heather said: What Should States Do When the Federal Government Usurps Power? « Publius-Huldah's Blog http://ow.ly/1wKlS [...]

    Pingback by Tweets that mention What Should States Do When the Federal Government Usurps Power? « Publius-Huldah's Blog -- Topsy.com | April 10, 2010 | Reply

  11. Ayn Rand is my hero. I reread Atlas Shrugged every few years to remind me of what can happen, and now seems to be threatening.

    You…are my hero, too. I cannot wait to meet you in DC!

    Comment by elizabeth | April 6, 2010 | Reply

  12. Now, here we find solid substance, not just inspirational cheering.
    The moral argument for individual rights appears one place only. A dark-haired, little Russian woman escaped the Communists in 1926 and came to America, precisely because it was the only place on Earth that even spoke of the rights of the individual person. She turned herself into the most inspiring writer in the English language. Her pro-freedom novel, Atlas Shrugged, sold 720,000 copies in 2008 and 2009 combined. And it was published 53 years ago, in 1957. Ayn Rand also wrote a little book on morality called The Virtue of Selfishness. In it, you’ll find her essay, “Man’s Rights, defining what rights are, what they are not, what violates them and showing that they are unalienable (as Thomas Jeffeson said) because they are inherent in your nature as a living, reasoning being whose life in nature has specific requirements. Her plain-English argument is based on facts available to the observation of every man, no matter what his other beliefs, in all times and places.
    The application of her proof of rights to “The Nature of Government” is explained in an essay by that very title in the same book. She even has an essay about “Government Financing in a Free Society”, explaining that all taxation is the use of force by a government against its citizens in order to finance itself and, so, is immoral. She shows how to finance a government of proper functions without taxes.
    And the moral root of individual rights, limited government and a society of free men and women? You’ll find that in her opening essay in that book “The Objectivist Ethics”. This tiny paperback holds the thinking person’s adventure of a lifetime.
    Set aside the comments of critics on both the Left and the Right and treat yourself to Ayn Rand, a woman who was a citizen of the USA by choice.

    Comment by Paul Beaird | April 5, 2010 | Reply

    • Ayn Rand shaped my thinking over 50 years ago. I first read Atlas Shrugged just 2 years after it was first published. Read all her other works as well. I consider her one of the greatest political & moral philosophers of all time. Stay in touch.

      Comment by Publius/Huldah | April 5, 2010 | Reply

  13. Beautifully written! Well versed and educational. However, in para 9, sect 5, I was looking for the answer you would give, but there is none. Why must we never speak of constitutional rights and where can we see your paper on Rights? I would love to see what you have to say about that.

    Comment by MCA | April 3, 2010 | Reply

    • Dear MCA, THANK YOU for your comment! I added links to the papers which explain the concepts everyone needs to learn. Please comment any time. I really appreciate suggestions for improving my site.

      Comment by Publius/Huldah | April 4, 2010 | Reply


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