Offsite Post: ‘The Constitutional Ombudsman’

 

Since 1787, one little question has continually haunted the States:  Who has the final say in the matter of interpreting federal and State constitutions and laws in the United States?  Despite the grand claims from the federal government (particularly the federal Supreme Court), it is not at all settled that their word is weightiest.

If one takes a quick look around, he will see a number of instances of States and localities thumbing their noses at the federal city – whether it is the legalizing of hard drugs in various States and cities, the anti-gun owner policies of California and NYC, the illegal immigrant sanctuary cities like Chicago, etc.

The problem is that the Philadelphia constitution is silent on this matter.  Into that silence the federal Supreme Court famously interjected its rather loud and raucous claim to be the final arbiter of constitutional questions in Marbury v. Madison (though the federal Judiciary Act of 1789 could come in for a good whoopin’ right about now, also).  But its claim has no supporting evidence.  On the contrary, even the centralizers in The Federalist Papers told us that that Court is supposed to be the weakest branch.  We should hold the justices to that.

Its claim to finality, therefore, is worthless.  They may make as many rulings as they like based on that claim, but no one is obligated to treat their decisions as forever binding.

But if the Supreme Court is not the final authority, nor any other branch of the federal government, then who is?  Thomas Jefferson actually gave us the answer in 1798 in the Kentucky Resolutions:

“ . . . to this compact each state acceded as a state, and is an integral party, its co-states forming as to itself, the other party: That 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; but that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

Each State, then, is the final authority of the constitutionality of laws.  This is further borne out by the ratification statements of New York, Rhode Island, and Virginia, when they adopted the Philadelphia plan of union.  Rhode Island, which is about as far from an evil Johnny Reb Southern State as one can get, didn’t leave much to the imagination that the States are the higher power in the federal-State relation when she declared, “That the powers of government [delegated to the feds—W.G.] may be reassumed by the people whensoever it shall become necessary to their happiness.”

 . . .

The rest is at https://thehayride.com/2022/10/garlington-the-constitutional-ombudsman/.

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Holy Ælfred the Great, King of England, South Patron, pray for us sinners at the Souð, unworthy though we are!

Anathema to the Union!