The Constitutional Settlements Commission of the States

Commission Concept Explained

Author:  Gary Marbut

(Link to proposed Interstate Compact)

An agent may not define the powers given to the agent by the principal.  Under this axiom, no branch of the federal government, nor the federal government in whole, may properly define the extent of the powers the states delegated to the federal government when the states created the federal government via the Constitution.  Only the granting authority, the states, may properly define those powers.  Defining those powers is the purpose of the Constitutional Settlements Commission of the States (Commission).

The Commission is an entity formed by interstate compact among participating states, and would be made up of one delegate selected by the state senate of each participating state.

The purpose of the Commission is to answer any questions posed to it concerning the extent of the powers given to Congress and the federal government by the states in the U.S. Constitution.  The Commission would adopt its own operating rules.  The Commission could accept or decline any questions presented to it.

The Commission would have no power to enforce any decisions it renders.  Its effect would come from providing a consensus position of states that states could enforce individually but in common by applying states' sovereignty and reserved authority under the Constitution.

The Commission provides a way for the states to collectively define the powers the states have delegated to the federal government in the Constitution.  It would be entirely up to individual states to implement, or not implement, the decisions of the Commission.  But, if the states had a mechanism to collectively rebuff federal excesses, in unison, that would have a much greater effect than the current patchwork of state efforts.

Decisions of the Commission would not be reviewable or subject to change by any other entity whatsoever.

Any state could become a member of the Commission by enacting the interstate compact and appointing a delegate to the Commission.  The Commission would become active upon a minimum of nine states adoption of the interstate compact and appointing delegates to the Commission.  Any state could withdraw from the Commission at any time by repealing its interstate compact.  Any member state could recall and replace its delegate to the Commission at any time for any reason the state deems sufficient.

Eligibility for delegates and responsibilities of delegate states are specified in the interstate compact, as are the general procedures for the Commission.

Many thoughtful people are properly concerned about excessive powers assumed and asserted by the U.S. federal government.  Various solutions have been proposed.  The only practical solutions involve some form of asserting states' sovereignty – only the states may and can restrain the monster the federal government has become.  It is up to the states to get the monster they created back on a leash.  The concept of the Constitutional Settlement Commission of the States may be a more doable way to organize and assert states' sovereign powers than other solutions currently under consideration or available.

Objections to and questions about the Commission concept

More will be offered about objections as they arise.

Congress would not approve.  But of course.  The Commission is given no enforcement or other authority in the proposed Interstate Compact very specifically so congressional approval need not be sought or obtained.  Did Congress approve the formation of the National Governors Conference?  No.

The States would fail to enforce Commission decisions because they're not mandatory.  One of the problems that must be solved is top-down, mandatory this, and mandatory that.  Enough with mandatory!  Mandatory is inconsistent with liberty.  The States are sovereign.  They will do what they will.  If some States are unwilling to individually enforce a particular Commission decision, then any such decision may be deemed to appropriate for that state.

But will it work?  The success of the entire effort will depend, ultimately, on the dedication of the states to use their state sovereignty reserved to them under the Tenth Amendment to resist federal excesses in unison.  Whether or not sufficient states will demonstrate sufficient gumption for that remains to be seen.  However, there currently is a wave of states' resistance to federal power, even if a patchwork effort, suggesting the states may have the necessary gumption.  If such resistance were in unison among many states, for specific issues, the chances of a successful outcome would be greater, thus the Commission concept.

Doesn't the Supremacy Clause give the federal government ultimate authority over everything it wishes to do?  No.  First, the Supremacy Clause only applies to enumerated powers.  Second, the Supremacy Clause does not give the federal government the authority to judge the powers delegated to it.  Third, the Supremacy Clause was amended (modified, constrained) by the Ninth and Tenth Amendments.

Isn't this idea pretty "outside the box."  But of course.  So was the Declaration of Independence.  How is the "inside the box" stuff working out for you?

"If the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones. If the federal government has the exclusive right to judge the extent of its own powers, it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power." - Thomas Jefferson.