How the Constitution Ended Slavery
By KrisAnne Hall, JD
While defending the Constitution I am met often with two questions: 1) If the founders were so great and the Constitution such a great document, why did it preserve slavery? 2) Why did the Constitution treat black people as 3/5th a person? To understand the truth, we start with some basics…
Slavery was an imposition placed upon the colonists by Great Britain. Col. George Mason describes this source and its problem during the Federal Convention (22 Aug. 1787):
“This infernal traffic originated in the avarice of British Merchants. The British Govt. constantly checked the attempts of Virginia to put a stop to it.”
This created an addiction to this labor in many States. Judge Pendleton observed during the Debate in South Carolina House of Representatives (1788) “that only three States, Georgia, South Carolina, and North Carolina, allowed the importation of negroes. Virginia had a clause in her Constitution for this purpose, and Maryland, he believed, even before the war, prohibited them.”
However, James Madison also pointed out during the Debate in the Virginia Ratifying Convention (15 June 1788) that there were even “a few slaves in New York, New Jersey, and Connecticut: these states would, probably, oppose any attempts to annihilate” slavery.
How could the States overcome their differences on this subject and agree on enough to form a Union? The drafters of the Constitution had an advantage, they knew a few things to be absolutely true and these things would provide the solution to their dilemma.
The drafters of the Constitution knew their history, they had studied governments and how people interact in society throughout history and they knew the principles of Liberty. They KNEW that they could not plow new fields overnight; they understood that they could not reform society with one move. But they KNEW they were forming a REPUBLIC and NOT a democracy.
A democracy is mob rule; it is tyranny in public form. Jefferson said, “173 despots would surely be as oppressive as one.” With a democracy, the majority of the people would always oppress the minority. Liberty would never prosper and grow. The force of the majority would always keep the minority in servitude. By creating a republican government, they were able to provide minorities with a society-changing voice. This voice would ensure not only the survival of Liberty but also its expansion.
In order for a Republic to function properly, there must be proper representation. If there is a way to manipulate the number of representatives allotted to a State, then that would be another avenue for one party to seize the power of another. Representation was to be established through population and controlled through the popular vote. Incorporating the slave population in order to determine the number of representatives was causing some states to cry foul.
The slave owners wanted to classify slaves as “property” to avoid the application of rights to them as “persons,” but wanted to also classify them as “persons” for establishing representative power in Congress. The objection was, the States with greater slave populations would get greater representation, but since only “freemen” could vote, greater representation would be consolidated into fewer people. The large slave owners would almost assuredly control the vote in the State and have greater representation and control in Congress. This skewed representation could delay the desired end to slavery significantly.
The drafters’ solution to this dilemma was the 3/5th Compromise which, along with article 1 section 9, would help to further the of end slavery. The 3/5th Compromise did not, as popular education teaches, count each slave as 3/5th of a person, it deprived Slave States 2/5th of their representation in Congress! This created a powerful incentive to end of slavery legislatively. Slave States would have a reduced representative power in Congress and the Free States would have an increased representative power. This would not only ensure that the Slave States could not over power the Free States in Congress, but also would act as an incentive for the people of the Slave States to demand their government free the slaves to obtain the full potential of their representative power. The 3/5th Compromise did not make "black men 3/5th of person," but ensured that the true power to end slavery would come through the will of the people over their government. Former slave and famous abolitionist Frederick Douglass made this very point in 1860 in a speech in Glasgow, Scotland:
"I answer — It is a downright disability laid upon the slaveholding States; one which deprives those States of two-fifths of their natural basis of representation. A black man in a free State is worth just two-fifths more than a black man in a slave State, as a basis of political power under the Constitution. Therefore, instead of encouraging slavery, the Constitution encourages freedom by giving an increase of "two-fifths" of political power to free over slave States. So much for the three-fifths clause; taking it at is worst, it still leans to freedom, not slavery; for, be it remembered that the Constitution nowhere forbids a coloured man to vote."
The second constitutional mechanism to end slavery was the sunset provision incorporated into the Constitution, Article 1 Section 9, a provision that would provide the means to end slavery in 1808 by putting an end to the importation of slaves once and for all.
"The migration or importation of such persons as any of the States now existing shall think fit to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person;"
The framers understood that the end of the slave trade would bring about the end of slavery. Stop the flow of slaves and the trade that George Mason called "diabolical" and "disgraceful" and Patrick Henry called "a lamentable evil" would be extirpated. They believed the abolition of the slave trade equaled the abolition of slavery as a whole.
“Men, at that time, both in England and in America, looked upon the slave trade as the life of slavery. The abolition of the slave trade was supposed to be the certain death of slavery. Cut off the stream, and the pond will dry up, was the common notion at the time.” – Frederick Doglass
The final guarantee to the end of slavery our drafters secured came through the ratification of the Constitution. If these Slave States refused to join the Union, the trade of slaves on the American Continent, and by the very neighbors of the Union could go on forever. However, if the Slave States wanted to be part of the Union, if they wanted to participate in the benefits of the Union, they would have to agree to all the provisions that would disadvantage the use of slaves and ultimately destroy the trade altogether.
Justice James Iredell stated during the Debate in North Carolina Ratifying Convention (26 July 1788):
“It was the wish of a great majority of the Convention to put an end [to slavery] immediately; but the states of South Carolina and Georgia would not agree to it. Consider, then, what would be the difference between our present situation in this respect, if we do not agree to the Constitution, and what it will be if we do agree to it. If we do not agree to it, do we remedy the evil? No, sir, we do not. For if the Constitution be not adopted, it will be in the power of every state to continue it forever. They may or may not abolish it, at their discretion. But if we adopt the Constitution, the trade must cease after twenty years, if Congress declare so, whether particular states please so or not; surely, then, we can gain by it. This was the utmost that could be obtained. I heartily wish more could have been done. But as it is, this government is nobly distinguished above others by that very provision. Where is there another country in which such a restriction prevails? We, therefore, sir, set an example of humanity, by providing for the abolition of this inhuman traffic, though at a distant period.”
The framers knew that by creating the union they would ensure the survival of Liberty, without the Union establishing a government on the principles that “all men are created equal and endowed by their Creator with certain unalienable Right” would likely fail. James Madison spoke of this fear during the 1788 Ratifying Convention:
“Great as the evil is, a dismemberment of the Union would be worse. If those States should disunite from the other States for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.”
The drafters of the Constitution also understood through the establishment of the Republic they would guarantee the minority populations a society changing voice. They believed through compromise they had done everything that they could have possibly done end the institution of slavery and the power of slave owners and still create a union. They were also persuaded through a study of their own history that if Liberty is given the proper fertile ground, it always prospers and grows. They were convinced that Liberty was contagious!
Roger Sherman, a delegate from Connecticut to the Federal Convention (22 Aug. 1787) observed
“that the abolition of slavery seemed to be going on in the U.S. & that the good sense of the several States would probably by degrees compleat (sic) it.”
Oliver Elsworth, also a representative from Connecticut very confidently stated, “Slavery in time will not be a speck on our country. Provision is already made in Connecticut for abolishing it. And the abolition has already taken place in Massachusetts.”
An additional insurance for the cultivation of Liberty was established through the Amendment process. The framers believed that as society matured in Liberty, the people would be more capable of self-governance and need less government. They wanted to ensure that as Liberty grew, it could also be protected through peaceful modification of the Constitution. By offering the Amendment process, the expansions of Liberty could become permanent. The Amendment process prevents the Constitution’s interpretation to be based upon the whim of the current culture. Without the process of permanently amending the Constitution, the people of this nation would be subject to temporary interpretations. The prevailing party or culture would beget a conservative interpretation today, a liberal interpretation tomorrow, a socialist interpretation the next… subjecting the people to an ever-vacillating standard and leaving the people never really knowing the security of their rights.
It is unquestionable that slavery was detested by many at the formation of our Constitution; only revisionists are served by denying this truth. But the formation of the union was essential to the preservation of Liberty and the end of slavery. Without the union these independent, sovereign States would be able to continue the practice of slavery without any national consequence. The Constitution did not preserve slavery, it was crafted to be a weapon wielded for slavery’s demise.
It is to be hoped, that by expressing a national disapprobation of this trade, we may destroy it, and save ourselves from reproaches, and our posterity the imbecility ever attendant on a country filled with slaves. James Madison, Import Duty on Slaves, House of Representatives 13 May 1789
It is true that members of Congress, Presidents, and Supreme Court Justices have all failed to meet the standards established by the drafters of the Constitution. But the failings of America are because of the failings of people, and not because the standard set by the Constitution failed America. As Frederick Douglass asked in his defense of the Constitution, “Shall we condemn the righteous law because wicked men twist it to the support of wickedness?
Frederick Douglass gives a most conclusive summary to the argument. Only by twisting the document’s words and ignoring the truth can we assign a pro-slavery character to the Constitution and miss its role in setting the stage for the abolition of slavery.
“This, I undertake to say, as the conclusion of the whole matter, that the constitutionality of slavery can be made out only by disregarding the plain and common-sense reading of the Constitution itself; by discrediting and casting away as worthless the most beneficent rules of legal interpretation; by ruling the Negro outside of these beneficent rules; by claiming that the Constitution does not mean what it says, and that it says what it does not mean; by disregarding the written Constitution, and interpreting it in the light of a secret understanding. It is in this mean, contemptible, and underhand method that the American Constitution is pressed into the service of slavery. They go everywhere else for proof that the Constitution declares that no person shall be deprived of life, liberty, or property without due process of law; it secures to every man the right of trial by jury, the privilege of the writ of habeas corpus — the great writ that put an end to slavery and slave-hunting in England — and it secures to every State a republican form of government. Anyone of these provisions in the hands of abolition statesmen, and backed up by a right moral sentiment, would put an end to slavery in America.”
Principles & Purpose of the Natural Born Citizen Limitation
by KrisAnne Hall, JD
Our Founders established the criteria of Natural Born Citizen upon our President for a very important reason. Natural Born Citizen meant, to our framers, a child born of two parents who were citizens of the United States at the time of the birth of that child. If you are not sure of this, or perhaps disagree, please read this article based upon fact & history before you go on: https://goo.gl/sFkKUm
A person who is born of just one parent who is a citizen of the United States is a citizen by birth, but not Natural Born Citizen. Someone cannot hold or have held dual citizenship with a foreign country and be a Natural Born Citizen. The fact that we are confused by this qualification, or perhaps even wish to alter this qualification, must be because we do not understand WHY this qualification was established in the first place. So, before we take a stand either way, we must consider the reasons why this qualification was established by the framers of the American Constitution.
The whole reason the president must be a Natural Born Citizen is because our framers had a history full of foreign kings imposing foreign law and foreign favor upon the people and they knew how dangerous foreign influence was to Liberty. George Washington spent a great bit of effort trying to drive this understanding home in his Farewell Address of 1796:
“Against the insidious wiles of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government.”
Washington knew from his history the real dangers of foreign influence. Part of Washington’s British Constitution was a document called the Grand Remonstrance of King Charles 1,with a Letter in His Hands1641 in which the people of Great Britain listed many grievances against their King, Charles I. They indicated that these grievance were indicative of a larger design to overturn and undermine Liberty of the people and the Law of the Land. One of the grievances illustrates how foreign influence and foreign law have contributed to that destruction of Liberty:
“Such Councillors and Courtiers as for private ends have engaged themselves to further the interests of some foreign princes or states to the prejudice of His Majesty and the State at home.”
In another part of the British Constitution, this time the English Bill of Rights of 1689, the people of Great Britain actually require an oath of their King and his council to shun all foreign influence:
“And I do declare that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm. So help me God.”
Protecting the United States from foreign influence was very prominent in the minds of our framers, especially in the office of president. At the time of the creation of the Constitution by the States there were no Natural Born Citizens so an exception was made until that qualification could be met. Article 2 section 1 clause 5 reads:
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;”
The exception to the Natural Born Citizen requirement was that the President must be a “Citizen of the United States, at the time of the Adoption of this Constitution.” Joseph Story in his “Commentaries on the Constitution, 1833” explains that this was to ensure that people who were “Patriots of the Revolution” could be considered for this office.
“This permission of a naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties. It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country.”
This is an important distinction that helps us understand WHY the Natural Born Citizen requirement is a must. The President is the commander in chief of the military. Our framers knew from their history that it would be extremely dangerous to allow someone of foreign influence to exercise power over our military. Founder, John Jay wrote a letter to George Washington on July 25, 1787, expressing this very point.
“Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the American army shall not be given to, nor devolved on, any but a natural born Citizen.”
The commander in chief could have no fractionalized loyalty. The commander in chief must be loyal to the United States, first and only. Prior to being a Natural Born Citizen, the candidate for president would have proven that loyalty by having been a “distinguished revolutionary patriot.” Once time established the availability of Natural Born Citizen candidates, that unbroken loyalty would be proven in party by the fact that both parents were citizens of the United States and establishing that the candidate would have been raised in a home with loyalty only to the United States.
When a child is raised in a home where one or both parents are citizens of a foreign country, then that child will naturally be raised with an attachment to that foreign militarycountry out of love for that parent. Our framers knew that in time of military crisis, our commander in chief must be free from all attachments and bias with a foreign country and mattered not if that bias was for or against the foreign country. The president must not hesitate or haste in matters of war. He must only act upon the best interest of the United States, free from internal conflict. George Washington explains this fact in his Farewell Address:
“Excessive partiality for one foreign nation and excessive dislike of another cause those whom they actuate to see danger only on one side, and serve to veil and even second the arts of influence on the other.”
Alexander Hamilton gives another perspective upon the Natural Born Citizen requirement. He postulates why a foreign country might actually want to actually raise up someone to become president of the United States and the inherent danger in that possibility:
“Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?”
Just as the birth of a child on US soil does not create citizenship in the parent, the birthplace of the child does not establish the status of Natural Born Citizen. Throughout history citizenship has been based upon the criteria of the parents. It has not been linked to the child. This criteria of Natural Born Citizen does not deviate from that norm.
In summary, the entire reason for establishing the criteria for a president to be a Natural Born Citizen was to help to eliminate any possibility that the commander in chief of the military be influenced by love or hate of a foreign nation. Because of this well established and historically justified reason, we should think very long and hard before we consider altering or diluting this established requirement through modern interpretation or modern court opinions. Our framers did what they did on purpose and with a purpose. We only endanger our Liberty when we assume they didn’t know what they were doing, and our advanced intellect means we can disregard their reasons for our own personal preferences. We would do well to learn from this history, instead of dooming ourselves to repeat history’s mistakes.
Property, Liberty, & Due Process
By KrisAnne Hall, JD
Do we realize how important and essential property ownership is to Liberty? Our founders knew how essential property ownership was to every inherent right.
We must understand the proper definition of Property to know its necessity to Liberty. Property isn’t just the place where you hang your hat. It isn’t just the car you drive or the gun you own. Yes, those are property, yet the true definition of that word is so much greater.
James Madison explains the definition of property in his dissertation of 1792.
“In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage…a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”
Apply this understanding of “Property” to our lesson yesterday on “Due Process” and we can begin to fully understand what Madison is asserting:
“Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions." James Madison, Property, 1792
When the government has the power to seize your property, they have the unlimited power to control you. Our founders knew that property ownership is essential to self-preservation. They knew that human nature dictates that if the government has the power to take your property without due process and a jury of your peers, then people will tend to submit to tyranny just to maintain their property and ensure their self-preservation. People will then be silenced and oppressed into ultimate submission for fear of losing their property. Freedom of speech...gone. Freedom of press...gone. Freedom of religion...gone. ALL Liberty is gone, when we cannot own our property free from government seizure. Due process is your protection when the government wants to seize your property…any of your property.
Now suppose that the seizure of that property is no longer limited by due process, but only limited by the government’s need for safety, security, or economic considerations. Government can determine that you no longer deserve the property essential to your self-preservation. What if government decides you no longer have the right the property of your life or liberty? What if the government begins to claim the property of your rights to be a privilege only maintained by their permission or consent?
Here is the million-dollar question… would it matter if that government is federal, State, or local?
What do the testimonies of History tell us about government today? Here is what Madison has to say,
"That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest. A magistrate issuing his warrants to a press gang, would be in his proper functions in Turkey or Indostan, under appellations proverbial of the most compleat despotism." (Property, 1792)
What kind of society do you want to live in? The decision is yours, as the authority over surrendering your Rights is yours alone.
“Rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of the individual.
Dispelling The Misguided Narrative on Original Intent
By KrisAnne Hall, JD
All too often we hear claims that appointing an “Original Intent” Judge will bring back Jim Crow and chattel slavery. A reasonable look at history (which is not to be expected from those dedicated to maintaining an activist based judiciary) should give rise to the opposite conclusion. A SCOTUS Justice who follows original intent should be viewed as a safeguard against a racist court. IF you will read to the end you will understand what I mean.
State Power v Federal Regulatory Power
By KrisAnne Hall, JD
If the book Demise of the American Republic were ever written, the history of the Supreme Court would likely occupy a bulk of its pages. Two opinions from the Supreme Court of the United States (SCOTUS) serve to illustrate this point. These opinions may appear rather innocuous on the surface; however, they are anything but harmless.
The great task of SCOTUS, according to James Madison, (aka Father of the Constitution) was for it to be an “IMPENETRABLE BULWARK” in protecting State rights and the Liberties of the people. Let me be blunt – It Has Failed. In two SCOTUS decisions, Pliva v. Mensing and American Electric Power v. Connecticut the Supreme Court has chosen to place Federal Regulatory Law above these Rights & Liberties.
Some may ask; “doesn’t the Supremacy Clause establish federal law above State law to be the proper order of things” No, it actually does not. Article 6 clause 2 of the Constitution, known as the Supremacy Clause reads as follows:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
It is true that the drafters of the Constitution knew that if the laws of the United States were not held to be supreme over the laws of the States, they, according to Alexander Hamilton, “would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY.” (Fed.#33). Without a degree of supremacy, compliance to federal law would be completely voluntary and wholly unenforceable. However, there is a distinct limit to the authority of federal laws. Alexander Hamilton goes on to say,
“But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution;…” (Fed.#33).
What Hamilton was saying is that the Supremacy Clause only makes Federal Law supreme when that Federal law is consistent with and established pursuant to the Constitution. When it is not thusly established, it is an “act of usurpation.”
You see, federal law is not the "supreme law of the land," that position belongs to the Constitution. Anything (e.g. law-regulation-executive order-supreme Court opinion) that is not made "in pursuance to the Constitution" is null and void. Hamilton makes this abundantly clear in Fed. #78:
"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.
No legislative act, therefore, contrary to the Constitution, can be valid."
And Hamilton was not alone. James Wilson, delegate for the State of Pennsylvania, argued that all congressional power was limited and defined by the Constitution and any transgression of that Supreme Law rendered the acts of Congress void and of no force.
“…the power of the Constitution predominates.
Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law."
By the consent of 3/4 of the States, this principle became law in Article 6 clause 2 of the Constitution.
Unfortunately, usurpation of rights, abuse of authority, and violation of the Supreme Law of the land is exactly what has happened at the hands of the SCOTUS. It has, through its opinions, supported the unconstitutional authority of a body, other than Congress, to establish law outside the authority of the Constitution and then given that body supremacy over State reserved powers.
There is no Constitutional basis for the federal EPA or FDA to impose authority over the States. First, the power exercised by these agencies are powers not expressly delegated to the federal government, they are powers reserved to the States. Secondly, these are Executive branch agencies (see EO 13575 sec. 3); law making is reserved through the Constitution to the Legislative branch.
When the SCOTUS chooses to assert that regulations, which are established by an unconstitutional agency, are supreme over the States via the Supremacy Clause, as they did in Pliva v. Mensing and American Electric Power v. Connecticut, they are usurping the States’ reserved power.
Furthermore, James Madison stated in the Federalist Papers 45:
"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." (emphasis added)
History and facts dictate that we must consider the intent of the Founders when properly interpreting the Constitution. That is why Hamilton specifically said, "...every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void." The term "tenor of the commission" is a direct reference to the intent of the drafters.
Madison establishing that the federal government has no Constitutional authority to establish a law that deals with the ordinary course of affairs, concerning the lives, liberties, and properties of the people. That is a duty reserved to the State. Hamilton is saying, since Madison is explaining that is our intent, the federal government is therefore bound by it.
However, the executive branch through these Federal Agencies, have imposed regulation after regulation that create restrictions and levy fines on the people of the States that have nothing to do with war, peace, negotiations, and foreign commerce.
Our founders established separation of powers because they had seen a history of over 700 years of tyranny usurping the rights of the people. They knew what it looked like, and they knew what it would take to prevent it and defeat it. They established the Legislative branch to be separate from the Executive branch, so that one man could not impose laws upon a people based upon his will; and they established a Judicial branch to check them both.
These unconstitutional regulations along with the subsequent SCOTUS opinions are acts of tyranny with which our founders were intimately acquainted.
Our founders knew that without the proper checks and balances, the executive branch would have the power to destroy liberty. They also anticipated the attempt to circumvent these checks. James Madison stated in his Speech to Congress - June 8, 1789:
In other instances [the Constitutions lays] down dogmatic maxims with respect to the construction of the government; declaring, that the legislative, executive, and judicial branches shall be kept separate and distinct: Perhaps the best way of securing this in practice is to provide such checks, as will prevent the encroachment of the one upon the other…independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. (explanation and emphasis added)
This is why judicial appointments are so important. It is not enough for our Senators to appiont "conservative" justices, we must demand appointment of justices dedicated to the principles and proper application of the Constitution.
But what do we do when the “independent tribunals of justice” have failed in their duties as guardians of the rights of people? The fantastic thing about our founders was they understood human nature. Alexander Hamilton stated that “experience is the oracle of truth; and where its responses are unequivocal; they ought to be conclusive and sacred.” Our founders learned from their own history that people would become inattentive to their rights; that tyranny would attempt to reassert itself as it had time and time again. Knowing this, James Madison continued with his speech in 1789 explaining there is a more powerful check of federal power than the courts:
Beside this security there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty. (emphasis added)
According to James Madison, the primary job of our State Legislatures was to be guardians of the people’s liberty against federal encroachment.
This is now our greatest hope to save the sovereignty of our States. Our Legislators must understand that this is the time when they must stand against these unconstitutional agencies and their unauthorized intrusion on the rights of States, which is to say the rights of the people. We must again establish ourselves as the engaged citizen government that was demanded by our founders in order to keep this Constitutional Republic. We must reassert ourselves as the leaders of our nation and remind the legislators that they are representatives of the people, working for the people, not celebrities vying for camera time and re-election.