What should states do when the federal government usurps power?

Posted By | April 4, 2016 7:17 am

Last Updated: April 4, 2016 at 7:18 am

Language of Liberty: By Publius Huldah

What can a State – or several States – do to resist encroachments & usurpations by the federal government? Here is advice from James Madison, Father of the U.S. Constitution.

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.

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).

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”. Madison continued, “…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.”

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 the 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.

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 and sat at the front of buses when it was against the law. But they did not initiate force. The moral superiority of their position could not be denied. And they won!

The most important concepts for Americans to learn are these:


2.Why neither the GENERAL WELFARE, the INTERSTATE COMMERCE nor the NECESSARY & PROPER 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 they must NEVER be referred to as “constitutional” rights. Rights are not given to us by the constitution or by government, but come from God, or “are endowed by our creator”. The founders referred to rights as “inherent” or “inalienable”.

My papers on RIGHTS explain the moral superiority of this position. Americans must learn why it is morally superior to that of the statists, and must be prepared to explain it at all times. Read more at publiushuldah.com.

The Language of Liberty® series is a collaborative effort of the Center for Self Governance (CSG) Administrative Team. CSG is a non-profit, non-partisan educational organization, dedicated to training citizens in applied civics. The authors include administrative staff, selected students, and guest columnists. The views expressed by the authors are their own and do not reflect the views of CSG. They may be contacted at info@tncsg.org

comments » 3

  1. Comment by Trumpie

    April 4, 2016 at 11:26 pm

    This is a very good article written by Publius Huldah, constitutional scholar & retired attorney.

    Also, I might add, look up her views on convention of states.

    People really need to pay heed before it’s too late!

  2. Comment by DWH

    April 5, 2016 at 12:07 pm

    Good article.

    Note that when you said “the People are to become ‘enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.'(Federalist No.16, 10th para).”; this is the failure of our times.

    Too many people today are more concerned with getting something for nothing than they are concerned with what is right or wrong, legal or illegal.

    Indeed, the Constitution enumerates specific powers that the government is granted and by its nature implies limitations on government in all else. But the minds of people today so often do not see this anymore. People today are more minded to see permission where there is no specific prohibition. As one said to me, “It is easier to ask forgiveness than to ask for permission.” This fundamentally spoiled and selfish mind rejects the limitations of authority, even if they are enumerated.

    The French historian, Guizot, once asked James Russell Lowell, “How long will the American republic endure?” Lowell replied: “As long as the IDEAS of the men who founded it continue dominant” Herein lies the answer to the question, “Will the Experiment Succeed?”

  3. Comment by a sane voice

    April 7, 2016 at 8:11 am

    How about just cleaning house of all of Washington? Term limits, refusing PAC and Super Donations. Today, all politicians care about is money in their pockets and not the good of “We the People!”. Congress should not be allowed to pack a simple bill with ” favors” to their PAC’s, or vote to raise their own pay. They should be spending their days in Congress working for US and not trying to get more money for re-elections from the first day they are elected. Does anyone else remember “School House Rock!”. Remember when they were able to explain what a bill is and how it gets passed? Too bad that simple process is now a fairy tale. If we have politicians that worked for the good of all of us and not a select Super Rich donors, no state would feel the need to leave.
    And can someone explain to me how the Federal Government has superceded any State’s rights? Is it because of allowing All People’s right to be protected? Is it because they should be caring for ALL American’s? Not just the Christians? Are you so narrow minded that you believe that only YOUR rights should be protected and not your neighbors? I know we live in the Bible Belt, should that mean that we should ALL follow Christ’s Teachings?

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