Ghosts of Constitutional Debates Past – Part IV


Continuing to work my way through the Debates on the Constitution, at a languid pace, I came to this letter from James Madison to Thomas Jefferson.  Jefferson was, at the time, Minister to France, so had no direct role in drafting the Constitution.  Madison’s main concern in the letter is federalism, and the division of powers between the states and the national government.  The letter serves as a reminder that the work of a committee, even a Constitutional Convention, is a work of compromise.  In particular, these paragraphs:

It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of sovereign States.  A voluntary of the federal law by all members, could never be hoped for.  A compulsive one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent & the guilty, the necessity of a military force both obnoxious & dangerous, and in general, a scene resembling much more civil war, than the administration of a regular Government.

Hence was embraced the alternative of a Government which instead of operating, on the States, should operate without their intervention on the individuals composing them: and hence the change in principle and proportion of representation.  (Emphasis added.)

This is critical, because it means that while the states would have a say in the federal government, in the form of the Senate and the Electoral College, the federal government would have no say in the selection of state officers, nor a direct veto on state legislation.  (Both of these options were considered.)  It also, I think, affects our reading of the Tenth Amendment, adding weight to the notion that individuals have standing to challenge federal attempts to overstep their bounds.

Right now, the Supreme Court is considering such a case:

Surveillance cameras captured Ms. Bond stealing an envelope from Ms. Haynes’s mailbox and stuffing potassium dichromate in her car’s muffler. That led to federal charges of stealing mail—and violating criminal statutes implementing the international Chemical Weapons Convention, which the U.S. ratified in 1997. Ms. Bond, who in 2007 was sentenced to six years imprisonment, appealed on grounds that Congress lacked authority to punish her for the chemical assaults.

In Philadelphia, the Third U.S. Circuit Court of Appeals denied Ms. Bond the right to raise that claim, ruling that only state officials had legal standing to assert a 10th Amendment violation of their authority. When Ms. Bond appealed to the Supreme Court, the Justice Department abandoned the Third Circuit’s decision, conceding individual defendants were entitled to argue that they were charged under laws exceeding congressional power.

For the record, keep your eye on another moving part here: whether treaties are permitted to override Constitutional protections.  This could mean that even if the US were to sign a small arms treaty of some kind, provisions that violate our understanding of the 2nd Amendment might not apply here in the US.  This isn’t to imply that signing or ratifying such a treaty would be a good idea, or that the Court would agree with me, just that the Court’s decision on this case might signal its current thought on the matter.

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