cross-posted from the Tennessee Tenth Amendment Center

On our June 13 episode of TRX: Tenther Radio, one of our listeners asked a great question. While I partially answered it on the air, I wanted to further answer the question posed by Darold in Tennessee. His question was:

“I talked to an attorney recently about the 10th Amendment: It was his opinion that the States can do what they will, but it is up to the US Supreme Court to determine whether the States have the power to do what they are attempting. Like Real ID, medical marijuana, Firearms freedom acts, Health Care Freedom Acts. Does the US Supreme Court have to rule on the above examples or not? I’m thoroughly confused.”

The first part of the problem is that he’s talking to someone who is J.D. impaired. Lawyers are not taught the Constitution in law school, they are taught case law. The two don’t always jive. In fact they rarely do.

During my time in college and seminary, I learned that one of the fundamental principles of interpreting a historical document, from Hammurabi’s code, to the Bible, to the Constitution is to first examine the source document. You first seek to understand what the words of that document meant to the people who wrote it. Then you can examine some literature written around the same time period to gain context. You can see what words meant to people back then and how they’ve changed, perhaps even gain some idea of the events surrounding the writing of those documents.

For instance with the Gospels in the Bible that chronicle the life of Jesus in the first century, you might examine the writings of Josephus, a first century Jewish/Roman historian. In the case of the Constitution you would likely examine documents like the Declaration of Independence and the Articles of Confederation, as well as the Federalist Papers and the Anti-Federalist Papers. For further clarification you could consult a dictionary from the 1700s, like Samuel Johnson’s A Dictionary of the English Language.

But do our lawyer friends do this? Oh no! Instead they examine case law which is what some judge has written about what other judges have written about what other judges have written about what still more judges have written about what the Constitution does or doesn’t say. That doesn’t make a lot of sense does it?

Further, the Supremes have shown repeatedly that they can’t be trusted to safeguard the Constitution. They only declared themselves the sole arbiters of what is and isn’t constitutional in one of their decisions and that has been taken at face value by Americans ever since. The Constitution nowhere says that the Supremes are the sole arbiters of constitutionality. The Supreme Court was created to settle disputes, or as the Constitution puts it “controversies” between various parties – which is where our 1700s era dictionary comes in handy. There is nothing at all in Section III of the Constitution, the section that lays out the function of the Supreme Court, that even HINTS at being the sole arbiter of all that is and is not constitutional.

Clearly Thomas Jefferson and James Madison didn’t believe that running to the Supreme Court was the best option to fight an out of control government. When the Alien and Sedition Acts were signed into law in 1798, they didn’t go whining to the Supreme Court begging to please be allowed to exercise their God-given rights. Jefferson and Madison choose to stand up and take action through the states in the form of the Kentucky and Virginia Resolutions.

Thomas Jefferson stated in the Kentucky Resolution, “that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”

Jefferson didn’t throw in an “as long as the Supreme Court says it’s ok first.”

Neither should Darold’s lawyer friend.