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Jefferson - On States Rights and the Supremecy Clause

In a letter to major John Cartwright, Jefferson wrote this on the seperation of powers and the limitations of Federal power over the State's powers.

" To the State governments are reserved all legislation and administration, in affairs which concern their own citizens only, and to the federal government is given whatever concerns foreigners, or the citizens of other States; these sometimes being made federal. The one is the domestic, the other is the foreign branch of the same government; neither having control over the other, but within it's own department. There are one or two exceptions only to this partition of power. But you may ask, if the two departments should claim each the same subject of power, where is the common umpire to decide ultimately between them ? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called, to ascribe the doubtful power in that department which they think best. "

Notice - there is no mention of the Supreme Court deciding these issues nor is ther any mention of the Supremecy Clause automatically taking control from the States. One can argue that there were only 13 States at the time, but I would arrgue that technology has more than made up for that inconvenience. It would be a simple matter now to have a 50 State conference call to comply with Jefferson's thoughts.

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Permalink Reply by JeansBrother on January 29, 2012 at 10:04am

I assume that Jefferson was speaking of a model for the general organization of government that is different from the one finally adopted. (If not, I am not bright enough to see how what he is saying fits into the model finally adopted.)

Assuming Jefferson's model had been adopted, it would certainly have been pertinent to governing during his day and even into the late 1800's early 1900's. However, governing after the age of electricity, transcontinental railroads, telephones and radio/tv may have become too complex to be manageable as a Foreign Branch and Domestic Branch. In the modern era of international corporations and other organizations that span national, state, regional and local boundaries of governments, his model may have become unworkable even with the advantages of technology.

We think Congress and the States have a difficult time making decisions even with a manager such as the Executive and a referee such as the Courts. If we use Jefferson's model and rely on "...a convention of the States... to ascribe the doubtful power in that department which they think best.", I see even more difficulty making decisions, concluding agreements and finding consensus than what we have today.

I hope my initial assumption was correct.

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Permalink Reply by John Tripp on January 30, 2012 at 5:39pm

You are spot on about Jefferson's views. Tese innovations are why he desired constitutional conventions every twenty years - to amend the Constitution. I use mthe word amend as he does, not as an actual Amendment, only as the verb form meaning to change. He, in my opinion, is the greatest visionary in history. As he points out, the minds of his day are no less capable of forming philosophy for the greatest benefit of mankind as the great mentors of ancient Greece or Rome, and the experience gained over the millenia could do nothing but improve on the thoughts of Plato or Aristotle. He knew the same would be true of each new generation. We do not need a concensus, only a majority. Jefferson firmly believed in the peoples wisdom would over-rule the corrupt decisions made earlier by the few. The clause he wished concerning the education of the masses on current events would counter any propaganda campaign. The ignorance we see daily proves that beyond doubt. When the takers of our society realize they will only be the last ones eaten, things will change. I think that time is closer than most others believe. When the States start to collapse, the spiral downward will be rapid.

The development of transportation and communications, weapons and their implications when used by vehicles which can deliver them in minutes anywhere in the world, has changed the entire demographics of the seperatiojn of powers. Nonetheless, the principles can still be applied using rational thought. The Commerce Clause and Supremecy Clause have been abused, with the Courts doing most of the heavy lifting, way past the point of acceptability. I believe Jefferson or even Hamilton would be spinning in their graves knowing how we have abused their efforts to form the most perfect balance between the people and the government ever put to paper. Now Obama has put these abuses on a fast track with his Czars and regulatory fiats from the Oval Office, bypassing the checks and balances system intentionally. These can be reversed immediately if the Republicans put someone in that office next year, but like steering a giant oil tanker, the changes back will not happen nearly as fast as the orders to do so. Only time will tell how much damage he has done to the world's economy and the world's stability. The only reason we are not as bad as Europe now is the headstart on self-destruction they had, and the U.S. still being the top dog as far as investing safely goes. We are just not as bad as they are, ergo - we are a better place to put the world's money. If we go, then it will be a fire sale ! Most people look at China, and their nearly 10% growth last year and think it a good thing. This may be the worst possible thing for them to grow this fast. The inflation which will occur because of it will surpass any gains the average Chinese citizen has made. Alan Greenspan threatened to raise the interest rates in America when our growth rate hit 5.8%. If he had it may have nipped the housing crisis in the bud. The Federal government does have to tinker with the free market from time to time to keep a safe balance. What Obama is doing is far more than tinkering. This is not Jeffferson's world, that is for certain.

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Permalink Reply by JeansBrother on January 30, 2012 at 6:42pm

I use mthe word amend as he does, not as an actual Amendment, only as the verb form meaning to change.

In other words, periodically modernize the language of the Constitution so it is more readily understood by the general public?

If so, I doubt that his idea ever would have gained any traction, not because it doesn't make sense, but because of the traditions of law. Have you ever noticed that once a legal ruling is made, it seems to be forever (precedent)? The language does not change (never modernized). This would stand as an impediment to updating the foundation of common law civil law and criminal law in the United States, which of course is our Constitution.

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Permalink Reply by John Tripp on January 31, 2012 at 12:58pm

The problem is that his ideas never were implemented into the structure of the constitution. The fact that meanings do change over time, sometimes completely destroying the intent of the original meaning of an entire piece of legislation. He was also against the use of " legalese " in any public document, simply because the average citizen does not grasp the full implications of the mandates.

His idea was not to just change and update the language, it was to keep the original meaning of the mandates as close as possible to the principles of his time. I could only take six months of paralegal apprenticeship in the mid 80's before I could feel my soul start to dissolve into the cesspool of legalese. The big lawfirms win because they can pay the best orators to preach this pap in front of Judges, who frankly are not as capable of understanding the meaning of the arguement being given than the lawyer giving it, nor is the legal professional on the ( usually ) prosecuting side of the aisle. Both Judge and prosecutor stand in awe of the winning lawyer, as a guilty person walks back into society, time after time. I left the field knowing my road to wealth was paved in solid gold, with my first father-in-law being a Harvard grad and majority owner of two law firms as my sponsor to his alma mater. His gift to the Harvard cookie jar had my road already paved - never mind that my qualifications looked more like an affirmative action resume than about ten thousand other white applicants. Our Justice sytem sickens me just as it would have Jefffersons. His belief that the main goal is to acheive the most just decision possible is laughable, literally, to most in the field now. My decision to not follow in my father-in-law's footsteps cost me my marriage and probably many millionms of dollars, and I consider it the smartest move I ever made. How lazy prosecutors and lawyers who brag about getting a man they knew was guilty off by way of legalese slight of mouth can sleep is beyond my grasp.

By upgrading the language as the meanings of words lose potency protects the precedent case intent, as well as the original words written by our Founders. I see no tradition in law that states the intent of a law can be altered because of words losing their real intent. Common sense dictates just the opposite.

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Permalink Reply by John Tripp on January 31, 2012 at 1:41pm

For some reason, my edited version of this last post did not take. I inserted full intent in lieu of real intent in the last line. I also added a short statement on Jefferson's reliance on the average citizen's duties to stay abreast of every situation, as best as possible, and the use of legalese does not allow that to happen reguardless of the time the people put into this effort. Jefferson was a radical in his time, and his journey to France as Emissary just before the convention and the arguements for his ideas leaving with him was not a coincidence. Washington is rightly looked upon by patriots as our greatest Founder, for his sacrifices in wartime and his leadership skills, but he was a Federalist, and he fully believed the central government would be better for the good of the people than the States power over them. We have the power of 20/20 hindsight now, but Jefferson and Madison along with their following saw it in real time. One of my first posts in '09, on the original ning sight for the 912 Project, was on the States being the saviors of the nation. This appears to be much more true now than then, and the fiscal reality they have to live by mandates they fight back. In the end, I believe Jefferson's predictions will prove true, and the good in the whole will prevail.

The post on Jefferson's view of the future of the republic gives a more detailed insight on his premonitions. " We must not weep for the means, but pray for the end " is never more true than now.

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Permalink Reply by JeansBrother on January 31, 2012 at 2:10pm

His idea was not to just change and update the language, it was to keep the original meaning of the mandates as close as possible to the principles of his time.

Perhaps I have misunderstood what you have said, but I don't know how to keep the original meaning of the mandates without modernizing the language to the context of our times.

I see the logic of what you are saying. But, I cannot grasp the magnitude of keeping up with the changes required.

First, there is the federal Constitution. Second, all state constitutions would have to be modernized to be consistent with the federal. Third all federal laws and regulations that depend on the Constitution for their implementing intent have to also be modernized. Fourth, all state laws and regulations also must be modernized. And finally, all previous court rulings would have to be modernized to be consistent.

You clearly have the background to understand what I say next. Our legal profession has chosen to freeze some terms used in the profession. These terms are normally very specific and intended for precise (normally procedural) use. These terms are also normally in Italian or from the Latin. Lawyers (unlike us common folk) are trained to know and understand how to use these terms.

Now, contrast the lack of term-freezing when it comes to issues concerning the Constitution. The words are the same but modern meanings have changed in general societal use. Now, a good constitutional lawyer is by necessity a historian so that he can properly identify the intent of the words as used when they were written. He is also a historian in order to understand the general and specific contexts in which those words were used.

Perhaps the issue is not so much modernizing the language of the Constitution as it is a matter of insisting that those who use it in the legal arena understand its history and the contexts under which it was written. This of necessity would include all Senators, Representatives and all judges who hear constitutional issues.

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Permalink Reply by John Tripp on February 1, 2012 at 10:24am

Your understanding of my article is correct as far as I can see, but you may be looking into things much more in depth than I am trying nto imply. First, the precedent cases must not be changed in any way, much like an Amendment to the constitution has to be rewritten, like prohibition. Only an asterisk with a short description of the individual word updates, and the reasoning behind the change. Secondly, I do not think this would happen as often as you may be thinking, and once the old problems have been updated, keeping the newer ones in the same reasoning of the Framers would be very brief. If we only changed the clauses which oversee the lesser ones dealing with the same main issue, it would cover them all. Things have gotten much more complicated in the past 221 years, and we have been a world economy since the Marshall Plan. Much like the healthcare profession, the Justice system needs a complete overhaul, keeping only the most bnasic outline of the original framework. Without this, all other professions or any aspect of our everyday lives for that matter will be ruled by crossed T's and dotted I's, without the guidance of moral authority or common sense. There is no word to describe the enormous task before us. Killing progressivism and the P.C. which accompanies it is a good first step.

I do not have the answer to if this can be done or not Jeansbrother, but I know we must try something to get back to where we belong as to original intent. The only way possible to do anything substantive now would take Amendments to the constitution. We could incorporate much of what we desire in the erwriting of the 10th Amendment, and include clauses which would limit the abuses that Jefferson and Madison saw coming. I don't care if it's Hamilton's outline, even he believed the States are sovereign nations and should hold the lion's share of the individual legislation and with hold the percentile of taxation to cover the cost of controlling their laws and collecting their taxes. The one thing we must realize is the constant and unending responsibilities of the citizens has to be fullfilled. The only way to do this is to make every citizen pay something, unless truly destitute. A stake in the game if you will.

I do see the problems that this would cause, as the politics we have today are not going to change, and there could possibility of party orientated abuses. There would have to be a two thirds yes vote in my opinion, and I believe, like Jefferson, we can not rely on only the politicians to do this. I like his idea of having a States convention every twenty years. With todays teleconferencing and other electric communication means, every household in America could be involved in real time. The problems that ignorance will bring is a given. Hopefully, like today, most of these people are also too lazy to get involved.

Right now, if the 48% of the people who do not pay any federal income tax or the entitlement crowd votes in numbers proportionate to conservative voters, this country is doomed to revolution. 63% of every household in America recieves some sort of handout now. That's a supermajority and growing. I believe what many of us do, that this upcoming election is for all the m,arbles, if we want a peaceful resolution.

As far as the Latin terms used in our courts - why do we need them ? Just because they have always done so does not mean change is not possible. There is no law forbidding the translation of simple courtroom proceedural matters which the average person can not understand. It is a microcosm of the entire article (s) I have written on Jefferson. His vision is still genius in it's simplicity. The numbers of lawyers per capita in this country has increased 50 times over since the birth of this nation, not to seek justice, but to make revenues and it's included power for the profession. The main goal of Justice has been usurped by a legal system which has thrown natural law out the window.

Shakespeare was right - " First we kill all the lawyers ! "

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Permalink Reply by JeansBrother on February 1, 2012 at 6:51pm

“Without this, all other professions or any aspect of our everyday lives for that matter will be ruled by crossed T's and dotted I's, without the guidance of moral authority or common sense. There is no word to describe the enormous task before us.”

“…we must try something to get back to where we belong as to original intent.”

“The one thing we must realize is the constant and unending responsibilities of the citizens has to be fullfilled.”

“I like his idea of having a States convention every twenty years. With todays teleconferencing and other electric communication means, every household in America could be involved in real time.”

I comment on your thoughts as referenced above. Several concepts stood out for me as I read your reply. First was “moral authority or common sense”: next, “constant and unending responsibilities of the citizens”: next, “a States convention every twenty years”: and finally “we must try something to get back to where we belong”.

I combine them in the following manner. Moral authority and common sense ARE the unending responsibilities of the citizens. “We must try something” to restore this responsibility to our citizenry. Perhaps we should implement a States convention periodically. Alternatively, perhaps we should teach citizenship. Even further, perhaps a citizenship test and period of universal service in some capacity should be required of all who would be citizens.

States convention: In an ideal world, this is a good idea. In the world you and I live in it has the potential to destroy the very Constitution it is supposed to modernize. Given the current biases in journalism, the inroads of socialist thought in the capitalist system and the massive financial support provided each, I think a serious danger might exist to the Constitution if a periodic States convention were held.

Teach Citizenship: This could be as simple as restoring the teaching of civics at every level of education, especially college. Another scheme might be to require every person between the ages of 18-22 to serve the public in some capacity at minimum wage for two years and pass a citizenship test. This second option is fraught with the same difficulties as a States convention – the political climate makes it too easy to corrupt the process. Instead of producing thinking citizens, it could produce politically motivated ideologues.

That leaves the first option of teaching civics again. Add to that a return of moral authority to parents from the all-seeing, omniscient, and amoral school system, and the combination of the two may return us to the course of “common sense” and an involved, thinking citizenry.

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Permalink Reply by John Tripp on February 1, 2012 at 8:23pm

I agree - all of the concepts mentioned are joined at the hip. I do not see how a convention every twenty years could hurt a representative republic.

We should have the means to electronicly prove voter fraud by now. Why is it not a major concern for our prestigious leaders ? They will carp about it, say the right platitudes every so often, but nothing is ever done about it when caught. We allow the Progressives to say both sides do it. If that is true, why is it Democrats are almost always the ones getting caught ? Milwaukee every election since I was a child has been caught. Democrats run every urban area in the nation - this is a fact. This is where the union boys crank up the buses and signatures are forged so pathetically as to intentionally make a mockery of the system.

I think we al agree that education is the key. This is something discussed on this site many times. The teachers unions have ruled since day one, when David Horowitz's parents started the first ones in the 30's. The progressives still run the majority of media sites. How does an effort like the tea party's trump that entrenched crowd ? With the internet and talk radio still available, at least for now, we have a chance to even the odds. It has to be the parents and community again - the revival of the PTA, and a grassroots effort like none before. I mention reality often as the real educator, anmd once again the real pain of sacrifice will push us towards the system we want. The true test of the " Great Experiment ", lies within the peoples efforts and always will.

Do you wonder why FOX news did not cover any of Glenn Beck's stories, proven using the faces and voices of the perpetrators themselves ? There has never been an effort close to his in exposing the left's agenda. I do believe we are on our own. It was enough in 2010, but now all the money is in the pot. It is impossible to know how many people have been reached by the '09 rallies.

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Permalink Reply by John Tripp on February 1, 2012 at 8:58pm

The words in quotation marks are Jefferson's ver bnatum. It was his ideas for the states to convene every so often ( these are also his words - every so often ), to fix the wrongs which we now have the hindsight to see. To not use every tool available to us in times of life or death of the republic would be much more than insulting to those who have paid the ultimate price for our freedoms.

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Permalink Reply by John Tripp on February 1, 2012 at 11:05am

But who oversees the professionals ? Money has so invaded our system that ethics is a commodity. If the society we live in today had half the ethics and moral character of the founders, we would not be in this morass. The SCOTUS changes from conservative to progressive, or vice versa, and the definitions change with them. This was forseen by Jefferson, but not the apathy of the average citizen to care enough for his freedoms to keep abreast of the issues and demand things be righted. The use of Latin is intentional in it's goal of confusing the general public and incorrectly implying to the people that this lawyer is worth 300 bucks or more per hour.

If only there was a test for morality, with assurances that the magistrate we put in charge of arbitrating issues in the field between legal professionals, our prayers would be answered. This is obvious altruism, which is a crime unto itself.