State and individual rights (9/9/2010)

Knowledge about the Constitution is necessary to frame the debates Idahoans are having today, writes David Adler.

Idahoans’ commitment to constitutional government and their passion for constitutional discussion and debate are among the most admirable traits of a citizenry well endowed with admirable traits, including robust defense of individual liberties and limited government.

Evidence may be gleaned from recent commentary in these pages.

Idahoans’ assertions about the Constitution and the role of government are readily grasped when you drive north from Idaho Falls on Interstate 15. As you approach Spencer and push on toward Dillon, Mont., and the world opens up in a way that it doesn’t if you were to look in the rearview mirror, you can appreciate why residents value self-reliance, ownership of guns and less, rather than more, government.

The geography of Idaho clearly informs views about politics and government; it breeds as well a version of constitutional geography one doesn’t obtain on either coast.

The ongoing debates about the meaning of constitutional provisions, including the scope of governmental authority, at both the state and federal levels, occasionally lose sight of constitutional fundamentals that are critical to informed understandings. Comprehension of these fundamentals will not end the policy arguments that flow from perceptions of constitutional clauses, but they will facilitate meaningful discussion of the Constitution.

John Adams was right when he observed that a “frequent recurrence to fundamental principles of the constitution” is critical to the maintenance of the republic.

1. The people, not the states, created the Constitution. This constitutional fact is manifested in the Preamble, which, readers will recall, provides: “We the People … ordain and establish this Constitution.” The Constitution is not, as southerner secessionists maintained, a compact among the states. The framers of the Constitution, inspired as they were by a keen sense of history and an influential group of acute constitutional theorists, might have embraced the “state compact theory,” but they rejected it in favor of popular sovereignty which, itself, was an outgrowth of the Declaration of Independence and its platform of Natural Rights.

2. Since states did not create the Constitution, they are not sovereign. The people are sovereign. Sovereignty refers to the ultimate legal authority indeed, the fount of authority, in any system of government. Further, sovereignty is indivisible and nondelegable. In short, it cannot be shared.

3. As a consequence, governmental entities, including states, do not exercise “sovereign authority.” They exercise powers, which are limited, as are federal powers.

4. Governmental entities, moreover, do not possess “rights”; they possess “powers.” Only individuals possess rights, although we can all appreciate the emotional currency packed in the assertion of federal violation of a state’s rights. Fewer tears will be shed over the violation of a state’s lawful domain.