YOUR Topics: Current Issues – The Supreme Court: It’s Role and States’ Rights

The Supreme Court has received much attention in recent years with everything from the controversy over the ruling on gay marriage to the recent discussion of who the Trump Administration would appoint to take the place of Justice Scalia. 

Today, I would like to discuss the role of the Supreme Court and the rights of the states. To understand these two things, especially states’ rights, we must understand the American system of government. 

The American System of Government 

“Democracy is like having two wolves and a lamb decide what is for dinner.”

–Benjamin Franklin

“The deliberations of the Constitutional Convention of 1787 were held in strict secrecy.  Consequently, anxious citizens gathered outside Independence Hall when the proceedings ended in order to learn what had been produced behind closed doors.  The answer was provided immediately.  A Mrs. Powel of Philadelphia asked Benjamin Franklin, ‘Well, Doctor, what have we got, a republic or a monarchy?’ With no hesitation whatsoever, Franklin responded, ‘A republic, if you can keep it.'”

Our Republic

Despite the various political leaders and professors that would have you believe we live in a democracy, America is a Constitutional Republic.  The authors of the constitution understood by the “lamp of experience” that democracies and monarchies do not secure what Americans wanted — liberty. 

KrisAnne Hall writes, 

“Our framers knew that Democracies would not preserve Liberty.  Our framers understood that there was really no difference between a Democracy and a Kingdom.  The only distinction is HOW MANY people rule over you.  In a Democracy it is mob rule; the majority ruling over the minority.  In a Democracy the majority holds all the power and hand out the privileges to the minority as they see fit.  If the majority is handing out the privileges then they can take them away. Then minority has nothing unless the majority says so.  Democracies do not ensure Liberty…they just ensure tyrants and slaves.  Only in a Constitutional Republic, through equal representation of majorities, can minorities have a society changing voice.  Only a Constitutional Republic preserves and prospers Liberty.”

Our Constitutional Republic was designed with three branches of government: legislative, judicial, and executive.  Each branch must operate by specific rules that are laid out in the constitution, and our Bill of Rights clearly tells us that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 

James Madison tells us in Federalist No. 45 that “The powers delegated 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.)

To simplify, Madison is telling us that the federal government (including the judicial branch) has four main responsibilities, and he names them — war, peace, negotiation, and foreign commerce.  All other governmental issues must be left to the states. 

Again quoting KrisAnne Hall, 

“We must keep the proper perspective.  We have three branches of government. All co-equal, deriving their power from the people and restrained by the Constitution.  This means the Supreme Court is NOT the ultimate arbiter of the Constitutionality of a law.  The Supreme Court is 1/3 of the federal government, with no more or less power than the other two branches.  It is the Constitution that is the Supreme law of the land, not the justices of the Supreme Court, and all decisions, even ones made by the court must stand before the ultimate judge, the Rule of Law in the Constitution.”

A Constitutional Republic and the separate branches of government helped form, as Alexander Hamilton wrote, “a just, limited, federal government.”  With all of this in mind, let’s look at the judicial branch, specifically the Supreme Court. 

Rules for Rulings

While the federal government (including the judicial branch) is intended to be limited, it is certainly necessary.  Let’s look at the purpose for the judicial branch, and what the constitution allows or doesn’t allow. 

Article 3 of the constitution outlines the logistical aspect of the Supreme Court’s jurisdiction as extending to:

1) all cases involving laws made “under this Constitution.”

2) all cases involving “Laws of the United States.” 

3) all cases involving “treaties made, or which shall be made,” between the U.S and another country made under the authority of the Constitution or other U.S laws.

4) all cases involving “Ambassadors and other public Ministers and Consuls.” 

5) all cases involving “admiralty and maritime Jurisdiction,” or cases involving ships and seas, and related matters.

6) all “controversies to which the United States shall be party.”  

7) all “controversies between two or more States.” 

8) all cases “between Citizens of different States,” involving land disputes.

But, as mentioned above, our Bill of Rights ensures that the issues that are not delegated to the federal government are state issues.  The Supreme Court, then, would not have any right to be involved in those issues, which, as Madison put it, “concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Alexander Hamilton further explains that the courts should keep government in check. Hamilton writes, “It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” 

At times, the federal government will step out of their bounds — as we have seen with Obamacare and other issues — and not follow the Constitution.  What is the answer? Do the states have the option of ignoring the unconstitutional laws or rulings?  This brings us to our last topic. 

States Rights and Nullification 

“Our great error is that we suppose mankind to be more honest than they are.”

–Alexander Hamilton

The founders understood that many of those in power love their power, and that the involvement of the people was absolutely necessary if the Republic was to be preserved for generations to come.  Because of these things, they understood that there must be a peaceful way for the people to protect their liberties and fight government overreach.  So, they prescribed nullification. 

“‘That the several states who formed [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and, That a nullification, by those sovereignties, of all unauthorized acts done under the color of that instrument, is the rightful remedy.’  Thomas Jefferson, Kentucky Resolutions 1799″ (Emphasis added.)

KrisAnne Hall explains nullification as the “legitimate act of refusing to implement unconstitutional federal directives.”  This applies to the Supreme Court as much as any other branch of the federal government.  Again, quoting KrisAnne Hall, “To assume that the Supreme Court has the final word on what will or will not be implemented throughout the land is to abandon all power of the states, and throw them into complete submission to a federal power.  It would be like allowing a criminal to determine his own guilt or innocence.” 

It seems fairly simple, right?  Unfortunately, many state politicians are either ignorant of nullification or choose not to implement such a resistance to federal encroachment. But, if the states are to preserve their sovereign rights, and the people are to protect their liberties, it is every American’s responsibility to keep the federal government in check.  If that means nullification, so be it.  The federal government isn’t going to check itself; that’s the states’ duty.  America, beginning with the states, must become more concerned with being Constitutionally correct than politically correct. 

I hope you’ve learned more about both the Supreme Court, and your rights as a citizen. As has been said by many, “The Supreme Court is not supreme.”  Don’t sacrifice your rights for comfort; instead, make the sometimes uncomfortable decision to fight for liberty.

Online sources: 

Democracy vs. a Republic – KrisAnne Hall

Constitutional republic


Franklin quotes:

Hamilton quotes:

A Republic, if you can keep it:

Lamp of Experience:

10th Amendment

The KrisAnne Hall show — Constitutional Misconceptions

Kentucky Resolution of 1799:

KrisAnne Hall on Nullification:


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