The Electoral College in a Republic
A Defense For the Minority
Against the Majority
I Pledge allegiance to the flag of the United States of America. And to the Republic for which it stands . . .
It is contended by numerous groups that the Democratic candidate should be the next President of the United States because she gathered the majority of popular vote by some two million plus votes. In a democracy this would be true, however, we are not a democracy. They forget that this is a Republic and in a Republic under common law principles the rights of the sovereign People and the sovereign States are secured under the Constitution declared to be the “supreme law of the land.”
It is called “States Rights.” It has been pointed out by several commentators, and rightly so, that the electoral college protects the rights of the several small States from being ruled by the large States, population not a consideration. It also requires the political candidates to petition the People of the less populated States for their support. It protects the sovereign rights of all the States. This distinguishing feature is a result of the fear that the small States had that the larger States would exercise an unrighteous dominion over them. This concern resulting in the representation apportioned in the House and Senate to protect and ward off any encroachment by the large States on the sovereignty of the less populated States.
Republicanism was demonstrated during the Constitutional Convention when two plans for representation were presented, one from the State of Virginia and the other from the State of New Jersey. The two factions were brought together with what is known as the Great Compromise of 1787 with the lower house having proportional representation and the upper house weighted equally with two representatives per State. You have the interests of the People represented in the House and the interests of the States represented in the Senate. Originally, senators were selected by the State legislatures to represent the interest of the State. However, the seventeenth amendment changed the election of senators from the State legislature to the people.
The Sovereignty of the Individual States
Every object whether it be a person, State or nation is in its own right a “sovereign.” Within their respective sphere, there is no superior. In Yick Wo v. Hopkins (1886) Justice Thomas Matthews approached the fundamental as he observed: “When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.” This remains one of Justice Matthew’s most famous opinions standing undisturbed for over a century.
In the M’Culloch v. Maryland decision (1819), Chief Justice John Marshall pointed to a fundamental associated with the delegation of the taxing power between one State and another, and between the States and the federal government. “Those powers are not given by the people of a single state. They are given by the people of the United States, to a government whose laws, made in pursuance of the constitution, are declared to be supreme. Consequently, the people of a single state cannot confer a sovereignty which will extend over them.” Each State, within it sphere is a complete sovereign completely separate from the other governmental entities. The bottom line is that the State of New York cannot confer a sovereignty over the State of Utah. Each State, within its sphere, is a complete and separate sovereign and outside of the United States Constitution, is not subject to the control of any other entity.
What has been forgotten by generations is that the federal government has no authority over the People in the respective States. It has been repeated by the Supreme Court over the centuries that the Constitution constructed a “limited” federal government making the natural rights of the People immune from federal regulation. When you study the authority of the Sixteenth Amendment and the power to tax remember the principle established by the Common law as expounded by John Marshall and the fact that the amendment did not extend the taxing power into the States. Theoretically, it would be applicable only in the States that ratified the amendment, but even this approach is the wrong path. The purpose of the Sixteenth Amendment was explained in great length by Justice White in the Brushaber decision (1916) that it did not alter or enlarge the scope of the taxing authority of the federal government.
During the Constitutional Convention Roger Sherman suggested; “. . . The objects of the Union, he thought were few. 1. Defence against foreign danger. 2. Against internal disputes & a resort to force. 3. Treaties with foreign nations. 4. Regulating foreign commerce, & drawing revenue from it. . . .” [Notes of the Debates in the Federal Convention 1787]; Thomas Jefferson: “To the united nation belong our external and mutual relations; to each State, severally, the care of our persons, our property, our reputation and religious freedom.” [To Rhode Island Assembly, 1801. ME 10:262]; and James Madison: “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 the last power of taxation will, for the most part, be connected. . . .” [The Federalist Papers, No. 45] These are “delegated” powers from the People who are the source of all authority and they define the scope of federal authority.
In 1819, the Supreme Court reaffirmed the scope of federal powers. “Among the enumerated powers of government, we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war, and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are entrusted to its government.” [Chief Justice Marshall, M’Culloch v. Maryland, reaffirmed in Julliard v. Greenman, 1884]
In his concurring opinion in the Lopez case, Justice Clarence Thomas remind us that: “The Founding Fathers confirmed that most areas of life . . . would remain outside the reach of the Federal Government.
“There are other powers granted to Congress outside of Art. I, 8 that may become wholly superfluous as well due to our distortion of the Commerce Clause. For instance, Congress has plenary power over the District of Columbia and the territories. See U.S. Const., Art. I, 8, cl. 17 and Art. IV, 3, cl. 2. The grant of comprehensive legislative power over certain areas of the Nation, when read in conjunction with the rest of the Constitution, further confirms that Congress was not ceded plenary authority over the whole Nation.” [U.S. v. Lopez, 1995]
It is beyond me why our State governments have failed to pickup on the guidance of the Court. For example the current Chief Judge John Roberts, although siding with the left side of the Court, did point out to the States that: “The States are separate and independent sovereigns. Sometimes they have to act like it.” (Affordable Healthcare Act) Sadly enough, the States have humbled themselves before the (king) federal government. Surrendering their sovereignty to the control of the king. This has left the sovereign People, in many cases, to pick up the flag and exert their own sovereign powers, including that in self-defense of their lives, their liberties and their property.
California should leave the Union. This act will demonstrate that the State will not survive on its own. The welfare payments to the illegals and a large number of its citizens who find it more convienant to live off the government than to be self-sufficient providing for their own needs and wants. They have a large population that have not learned to take on the responsibility for their actions.
The State will lose all federal funds, and when a disaster like the dam that is threatening several thousand homes, the State will have to look to its own finances; not the federal government. Its industries, farms and services will be forced to pay a high tariff to ship its goods to the other 49 States.
For sure they will lose the support and protection of any of the health benefits that the federal government might provide. The people will not have to pay into the federal treasury, however, they will see the taxes they pay to the State substantially increase so they can provide for those who receive yet do not contribute.
The efforts of the Calexit coalition in California are misguided. The strength of this movement lies in the People exercising their sovereign authority, which each State should do as Chief Justice Roberts advises. We need to remove the federal government from interference in our lives and the interfering in the affairs of the State. It we can return to the premise that the federal government was established with authority over the external affairs of the Nation, we would have no reason to fear tyranny from the federal level.
The Citizen’s Defenses
To the individuals who feel that their only recourse to an election they feel is a threat to their rights need to remember a principle expounded by James Madison: “Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”
Most of our State Constitutions have an article incorporated which outlines the importance of knowledge in defense of our natural rights. West Virginia; “3-20. Preservation of free government. Free government and the blessings of liberty can be preserved to any people only by a firm adherence to justice, moderation, temperance, frugality and virtue, and by a frequent recurrence to fundamental principles.” Virginia’s Declaration of Rights, 1776; “15. That no free Government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.” The State of Arizona: “Section 1. A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.” The State of Utah repeats the command of the State of Arizona; “Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.”
The problem rests with the lack of knowing those fundamentals. The Utah State legislature was asked to identify some of the fundamentals . . . not one of the legislators asked responded to the request. This leaves one to wonder, how in the world are we going to preserve our free governments if the legislatures, who represent the People have no idea what these fundamentals are. We need to press our representatives to know and protect those fundamentals. As expounded in the Declaration of Independence the sole purpose of government is to “secure” our rights, which include among others our lives, liberty and property.
To assist those who are protesting the election, let me help to point out and define some the fundamental principles. To start with, governments do not have “natural” rights. They have privileges. Every power that can be exercised by government comes from the sovereign People. I have already touched on the scope of some of those powers. The limits of the federal government acknowledged by the Court and reaffirmed consistently. Referring again to M’Culloch decision reported by then Chief Justice John Marshall; “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, . . . that principle is now universally admitted. . . . (316)
“The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, ‘anything in the constitution or laws of any state to the contrary notwithstanding.’ . . .(406)
“We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended.” (421)
Justice Clarence Thomas in his concurring opinion in United States v. Lopez decision (1995); “[I]t was widely understood that the Constitution granted Congress only limited powers, . . .” Today our legislatures have a difficult time understanding their “limited” powers.
Justice Miller, delivering the opinion in Loan Association v. Topeka (1874) addressed the limited authority of the federal government; “It must be conceded that there are such rights in every free government beyond the control of the state. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is nonetheless a despotism.” (662) One of the errors created by Chief Justice Roberts in his opinion on the Affordable Care Act was his failure to apply this fundamental principle to the individual mandate penalty which he declared to be a “tax.”
In writing his concurring opinion in the first hearing of Pollock v. Farmers’ Loan and Trust, (1895) Justice Field following what the Court has previously express in Citizens’ Saving Loan Ass’n v. Topeka (1874) and also in Parkersburg v. Brown (1883) approved the principle pressed by counsel: “’There is no such thing in the theory of our national government as unlimited power of taxation in congress. There are limitations, as he justly observes, of its powers arising out of the essential nature of all free governments; there are reservations of individual rights, without which society could not exist, and which are respected by every government. The right of taxation is subject to these limitations.”
Chief Justice John Marshall writing for the Court in the Antelope (18925) noted; “That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor is generally admitted, and that no other person can rightfully deprive him of those fruits and appropriate them against his will . . . .”
So how are we to understand the command in the Constitution that the federal government “shall have Power To lay and collect Taxes . . .” ? The answer is found in the fundamentals of the Common law and its protection of the natural rights of the sovereign People as explained by Justices Thomas, Miller, Field, Marshall and many others. Also, imposing a tax is a legislative function; this brings in the direction respecting the legislative authority spelled out in clause 17 of Section 8 in Article I of the Constitution.
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) . . . and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; . . .” (emphasis added)
So following the commands of the Constitution, yes , the central government can tax but only over those objects which the sovereign authority of the central government is given. Like all legislation, taxation is inherent in the Sovereign. Chief Justice John Marshall (1819) dealt with this subject on the authority of taxation. Although he directed his comments to State authority to tax, the principles he used to base that authority were common law principles that are applicable to any governmental authority federal or State. As he outlines it: “[A]ll legislative powers appertain[s] to sovereignty. The original power of giving the law on any subject whatever, is a sovereign power; . . .” The Chief Justice then refers back to the 8th section of Article I of the Constitution in that section is found the enumeration of the powers of Congress. Clause 17 of section 8 defines the land area where the sovereign authority of Congress can be exercised. “We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. . . .
“All subjects over which the sovereign power of a state (or federal) extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident.
“The sovereignty of a state (or federal) extends to everything which exists by its own authority, or is introduced by its permission; . . .”
Standing on this fundamental expressed in M’Culloch, Chief Justice Marshall adds this conclusion: “If we measure the power of taxation residing in a state (or federal), by the extent of sovereignty which the people of a single state possess, and can confer on its government, we have an intelligible standard, applicable to every case to which the power may be applied.” (M’Culloch v. Maryland) The strength of this decision has stood the test of time. The Supreme Court reaffirmed this principle in a decision involving the State Tax Commission of Utah v. Aldrich (1942).
Our defensive stand against tyranny in our government is supported by the three fundamental common law principles: first; the sacred nature of our Natural Rights; second, the source of government sovereignty, and third; the extent of that sovereignty. The question that settles the argument, lies in the source of sovereign powers. Finding that source requires calling upon the genealogy of the sovereign power and the delegation of those powers.
If we had a legislature that understood and applied the search we would solve many of our problems. Remember the maxim:
How easily are bishops made
By man or woman’s whim:
Wesley his hands on Coke hath laid,
But who laid hands on him?
Charles Wesley to his brother John Wesley
As to the electoral process of electing the President; the individual States are represented by electors who intern represent the people in the democratic process where the majority of the voters determine which way the vote will go to the particular candidate. This is the extent of the democratic process. The electoral process now demonstrates the “republican” process of the Common law electing the President.
When all is said and done, sovereignty rests on the People. The operation of the transfer of sovereign authority then follows the common law principle of “delegation of authority.” That principle states that the People can only delegate that authority which they possess. As the genesis of sovereign authority, they have absolute authority over their natural rights, their lives, liberties and their property. The authority to impose a sovereign power over these elements which are the birth right of all the People, by another sovereign is repugnant to natural law and the Common law principles of our Republic.
The defense of the People in a Republic is found in understanding the common law foundation of our constitutions and enforcing those principles. It requires the efforts of the People to be knowledgeable and vote for an honest government that secures the rights of the People and provides an opportunity for the People expand those rights in the “pursuit of happiness.”