Who Has the Final Say on Constitutionality?

Tenth Amendment Center:

Who Decides Constitutionality?

Who decides when the federal government has acted outside of those delegated powers?

Most Americans will quickly answer, “The Supreme Court, of course!”

Thomas Jefferson emphatically disagreed, arguing that the states make the determination in the last resort. Jefferson pointed out the absurdity of a branch of the federal government determining the extent of the federal government’s powers in the Kentucky Resolutions of 1798.

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 powers 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.

From elementary school on, we learn that the Supreme Court gets to make the final decisions on all things constitutional. In fact, the idea is so deeply engrained in the American psyche, to assert otherwise generally elicits howls of indignant protest. But if you stop and think about it, you will recognize the notion makes absolutely no sense.

Essentially, Supreme Court apologists argue that after fighting a bloody war to free themselves from a tyrannical government, the founding generation ratified a Constitution specifically limiting the general government’s power, insisted on a Bill of Rights to further define the limits on that power and ratified an amendment explicitly stating what was already implicit – that all powers not delegated to the federal government remain with the states and the people. Then, after all this, those same people gave one branch of the federal government absolute authority to interpret the Constitution.


It would be a little like letting a Dallas Cowboy player referee a game between the Cowboys and the New York Giants.

Simply put, if the federal government gets to decide the extent of its own power, through its own judicial branch, and the people of the states possess no mechanism to hold the government it created in check, the whole notion of  limited, enumerated powers becomes a farce. The federal government, in practice, becomes one of limitless power.

That was not the intent of the founding generation. They never envisioned nine federal employees determining the extent of federal power. They knew that a self-limiting institution simply doesn’t exist, and they would have never allowed the creation of one to rule over them.

James Madison emphatically asserted that the states retain absolute authority.

The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.

Further expounding on the subject, Madison pointed out that the president and Congress weren’t alone in the ability to overreach constitutional authority.

The [Virginia] resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.

Madison went on to say it logically follows that the states must retain the final say.

However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.


Who Decides Constitutionality?

Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center.He proudly resides in the original home of the Principles of ’98 – Kentucky.See his blog archive here and his article archive here.He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE
  • Dale Clary

    If the states do not have the right to decide constitutionality, we have no recourse other than revolution or secession. As a practicing lawyer who studies statutes and contracts on a regular basis, the perversions by the USSC of the written words in the Constitution are shocking. Judges would not interpret statues or contracts the way the USSC has treated Constitutional limitations on federal power. In a pair of decisions, the USSC first declared the Tenth Amendment but a “truism”, United States v. Darby, then completely beheaded that amendment by saying the Tenth was “not substantive”,South Carolina v. Baker. These two cases serve as a symbol of the many times the USSC has failed to follow Constitutional limitations on federal power. We must understand that as human beings we are all capable of failure, including those who wield great power, such as those on the Court. They were wrong, they are wrong, and we must say so from the platform of the states. Otherwise, we are done as a country, and our only recourse is revolution or secession.


  • August 24, 2014

    That prose is in no conflict to this view. No one disputes that the federal courts, and the Supreme Court have the authority to adjudicate cases as listed in Article III. It does not mean it can blind the other branches to its own constitutional interpretation, and no text within the Constitution grants it that power.


  • dmellon

    I thank you for once again addressing the issue of who decides the constitutionality of federal actions. There are questions concerning this issue that remain even among those of us that believe the states indeed have this authority.

    Given that each state can decide on its own the constitutionality of a federal action, my question is what actions can the state take on its own. Madison discussing the supremacy clause in #44 addresses this question in a somewhat oblique manner.

    He asks “suppose for a moment that the supremacy of the State Constitutions had been left complete by a saving clause in their favor”. His answer is pertinent because if each state on its own can take significant actions based on its own interpretation of federal actions then each state would be free to modify its constitution based on that interpretation.

    Madison’s answer to his own question is “In fine, the world would have seen for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster in which the head was under the direction of the members.”

    I believe that each state has the right to decide the constitutionality of federal actions but then it is incumbent on that state to convince others of its belief before significant actions can be taken. How many? Perhaps a majority. The Constitution itself requires 3/4 of the states agree. By significant actions I am not talking about non-compliance or jury nullification but rather arresting federal officials attempting to enforce a law deemed unconstitutional by a state or by modifying its constitution based on its interpretations.

    I believe Madison thought along those lines. Both the Kentucky and Virginia resolution were sent to the other states for concurrence and when none concurred no action was taken. Why did Jefferson and Madison even bother to seek others approval if they could have protected their own citizens regardless of what other states thought about the matter?

    I believe you credit our founders with the thought that each state on its own is free to interpret the constitutionality of federal actions as it sees fit and is then free and to take any actions it believes are warranted, when that thought did not exist.

    From what I have read about Madison’s thoughts I believe he would say, It is when a federal usurpation of powers not granted is so dangerous to the people that they are aroused in many states, then the many states have the duty and authority to act to overturn the wrong.

    • August 24, 2014

      Dale Clary,

      the problem, of course is the 16th and 17th amendments. The 17th because the state gave up their representation in the US Government. No longer can the states exercise control over the process of government. Their only choice today is nullification – an extreme measure that will carry extreme consequences. That brings us to the 16th amendment. The 16th allows the federal government to tax citizens into submission (the current IRS scandal for example) and then dangle that money in front of the states. Nullify the NSA, and you will lose every penny that your citizens expect daily from the federal government through the state: medicaid, clean water, superp-fund, education, defense contracts; you name the federal source of money and they will cut it off if the state doesn’t toe the line.

      If the states cannot control the Senate, they have no say in who is on the Supreme Court. If they cannot keep their people happy without the influx of federal dollars, they have no ability to control the government. As long as they can maintain a strong 2-party system, the elections don’t matter in the senate – club membership is more important than party affiliation or the needs of the people or the states.

  • August 25, 2014
    Mike Maharrey

    “Nullify the NSA, and you will lose every penny that your citizens expect daily from the federal government through the state: medicaid, clean water, super–fund, education, defense contracts; you name the federal source of money and they will cut it off if the state doesn’t toe the line.”

    People tell me this all the time. But history indicates otherwise. When the speed limit was 55, any state not in compliance was suppose to lose highway funds. By the mid-80s, almost every state was out of compliance – most intentionally. The feds never withheld a dime. Instead, Congress quietly raised the speed limit.

    When Nevada refused to approve water permits so the feds could build an unwanted nuclear waste facility in that state, the feds did not take away funding. They abandoned their plan.

    People need to quit acting out of fear. Nullify the NSA and if the feds want to try to yank funding for stuff, let them explain to the American people why they need to violate their privacy.

  • About arnash

    “When you find yourself on the side of the majority, it’s time to pause and reflect.” - Mark Twain - Politicians and diapers - change 'em often, for the same reason. "Government is like a baby. An alimentary canal with a big appetite at one end and no sense of responsibility at the other." Ronald Reagan "Liberals claim to want to give a hearing to other views, but then are shocked and offended to discover that there are other views." William F. Buckley, Jr. “The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt.” - Bertrand Russell The people are the masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert it. Abraham Lincoln “Good people sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.” - George Orwell “Satan will use a lake of truth to hide a pint of poison”.
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