By Timothy Baldwin, J.D.
approx. 5,200 words


Candidate for Montana Attorney General, Jim Shockley, stated while sitting in his official capacity as Montana Senator that the original and true meaning of state sovereignty, as expressed in the tenth amendment of the United States Constitution, was changed and ridded by the Civil War. Shockley’s position is completely incorrect constitutionally and historically. Moreover, it is dangerous to Montana’s rights and to the liberties of Montanans. Any attorney holding this view of the constitution does not qualify to serve as Montana’s next Attorney General.

I. Montana’s 2012 Attorney General Must Hold Correct View of the U.S. Constitution

Of all people who must understand, respect, and protect the system of federalism prescribed in the United States Constitution, it should be a State’s Attorney General. To qualify for this trusted position, one must know the true meaning, nature, and character of the United States Constitution. As well, he must understand America’s origins of political philosophy to guide his thoughts and conclusions relative to the oath of office to which he swears. Without this, the State will be in jeopardy of losing rights and will have obligations it otherwise would not have. The State would suffer politically, socially, and economically years afterwards.

II. The United States Constitution Requires Use and Protection of State Sovereignty

The United States Constitution established a system of government whereby the States would retain all sovereignty and power not expressly delegated to the federal government. Our historical records reveal that the tenth amendment was intended by the ratifiers as both a substantive declaration as well as a provision of protection.

The insistence of the tenth amendment ensured that all would interpret Congress’ power to regulate the internal affairs of the States with strict scrutiny. James Madison recognized that where the judiciary specifically did not apply the correct mode of interpreting State sovereignty, it would lead to “an appeal to the sword and a dissolution of the compact” (Federalist Paper 39).

The tenth amendment’s substantive and formal importance was advocated by both Anti-Federalists and Federalists. The overall understanding and exposition of Congress’ power under the United States Constitution was held in this light: “the State governments would clearly retain all the rights of sovereignty…which were not…EXCLUSIVELY delegated to the United States” (Alexander Hamilton, Federalist Paper 32).

These parallel lines of sovereignty were deemed the essence of freedom’s protection. Admittedly, more emphasis was placed on this division of sovereignty than was placed on precisely defining the extent of Congress’ powers. Alexander Hamilton said in Federalist Paper 31, “all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, NOT to the nature or extent of its powers” (emphasis added).

Given (a) the “infirmities and depravities of the human character” (James Madison, Federalist Paper 37), (b) popular elections are not sufficient to check ambitious government[1], and (c) the problems with mutable policies[2]; the founders observed that “mere declarations in the written constitution are not sufficient to restrain the several departments [of the federal government]” (James Madison, Federalist Paper 49).

Thus, the structure of the constitution provided political defense from both the State and the United States, and the people’s rights were more protected from usurpations. In juxtaposition, where the structure allowed for one side to dominate the other without defense, usurpations would become more frequent and dangerous. This consequence was to be avoided by all means.

Since the constitution’s ratification, both state and federal courts have recognized that the United States Constitution was based upon principles of federalism. “This constitutionally mandated division of authority ‘was adopted by the Framers to ensure protection of our fundamental liberties.’” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). The constitution is the supreme law of the land, not just what Congress says. All must obey and protect it.

Shockingly, there is an attorney running for Montana Attorney General in 2012 who does not subscribe to this form of government but instead, flips it on its head to create an entirely different form of government than what was ratified by the consent of the governed. This person is Jim Shockley. Shockley’s view of the constitution has been revealed by his statements while sitting as a Senator for Montana.

III. Shockley’s View of Constitution is Right-Wing Extremism: Governance Not Based On the Supreme Law of the Land, but on Military Force

Shockley believes that the United States Constitution changed in 1865 from its organic form. This change came not by the consent of the governed through constitutional process—the will of the people—but by military force. To Shockley, the Civil War “settled” all issues involving State Sovereignty. By “resolved”, Shockley really means, conquered.

In spite of (1) our forbearers’ sacrifices from 1776 to 1781 to win independence from Great Britain (see, Federalist Paper 45); (2) their tireless efforts and genius to create a federal republic composed of sovereign States as seen in every union formed in America from 1776 to 1787 (Id.); (3) the intent and genius of our forefathers from 1781 to 1791 to perpetuate a federal republic[3]; (4) the innumerable debates and cognitions made by America’s statesmen[4]; (5) and the United States Supreme Court decisions contradicting Shockley’s view of the constitution, Shockley believes that all federal laws are superior to the States’ and that all States must obey even where those federal laws or actions violate the essence of federalism and Congress’ limited powers.

It is no surprise then, that Shockley denies the power of the States to interpose against federal usurpations. It is doubtful if Shockley has a plan to substantively reduce federal intrusion and to respond to federal violations of the constitution. This is evident given his campaign website statement that he opposed Montana’s citizen initiative in 2004 for medical marijuana use because it “was illegal under the federal law.” Never mind that growing and using a natural plant was never a matter to be regulated by Congress. To Shockley, it is not the supreme law of the land that guides his position on the issue, but federal law.

Shockley’s position is dangerous to Montana.

IV. Historical, Constitutional, and Legal Comparisons

A.     United States Supreme Court Decisions During Reconstruction

Shockley’s view of the constitution is more extreme than any United States Supreme Court decision or implication in our history, including decisions rendered contemporaneously with the Civil War. The United States Supreme Court has never used the Civil War to amend, undermine, or explain the meaning and purpose of the tenth amendment.

The cause of the Civil War was not the tenth amendment. It was about a State unilaterally seceding from the union without a convention of the people (e.g. as nine States seceded from the Articles of Confederation through delegate conventions and ratified the United States Constitution). Shockley fallaciously combines the matters and uses the Civil War as an all-encompassing, general tool to redefine the constitution itself and to rid the States of their constitutional guarantees.

Abraham Lincoln spelled out the issue of the Civil War very plainly in his First Inaugural Address when he said, “no State upon its own mere motion can lawfully get out of the Union.” The war had nothing to do with redefining the tenth amendment or the States’ right under the constitution relative to federal encroachment, save only unilateral secession without the people’s delegation and convention.

Consider the US S CT case on point, Texas v. White, 74 U.S. 700 (1869), decided just after the Civil War and during Reconstruction. The Court says concerning the post-war status of States,

“Not only, therefore, can there be no loss of separate and independent autonomy to the States through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.” Id., 725.

The US S CT acknowledges that the tenth amendment and the protection of state sovereignty are the guarantees of the States’ indestructibility because without strong individual States, the entire union becomes weak. Like Lincoln, the US S CT saw the Civil War as only being a response to unilateral secession.

However, the US S CT recognized that secession could be accomplished “through revolution or through consent of the States.” Id., 726.  Abraham Lincoln said the same in his First Inaugural Address, stating, “[i]f by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one” (emphasis added). The Federalist Paper writers said the same.[5]

According to America’s statesman from 1776 to today, there are constitutional provisions considered to be “vital”—vital to the indestructible nature of the State and union. History proves, there is not a more vital provision in the constitution than the tenth amendment. Without it, the constitution never would have been ratified.

These statesmen showed how the United States Constitution guarantees that each State have a republican form of government whereby the people are governed by their consent, not by elitists and definitely not by conquest or war.[6]

Thus, where the federal government usurps its constitutional authority delegated in the constitution, the people of the States must protect the constitution because every public officer is bound by oath to maintain and defend it.

B. United States Supreme Court Decisions After Reconstruction

US S CT decisions for the past 100 years have reconfirmed the political importance and significance of the tenth amendment. Some have demonstrated the intent to reexamine constitutional doctrines that have allowed seemingly unfettered Congressional power at the expense of State sovereignty. The rationale used in support of that intent is that the tenth amendment has been mistreated for the past 80 years (since President FDR) and needs to be put back in its rightful place.

For example, the US S CT said in 1907, “[the tenth amendment] is to be considered fairly and liberally so as to give effect to its scope and meaning”. Kansas v. Colorado, 206 U. S. 90-91 (1907) (emphasis added). And US S CT Justice Clarence Thomas recently observed in U.S. v. Lopez,

“Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the substantial effects test should be reexamined.” 514 U.S. 549, 589 (1995).

Shockley prefers to interpret Congress’ powers and Montana’s obligations to the federal government in terms of conquest and subjugation, not the constitution. If, however, he uses the constitution as the basis for his understandings (as the constitution itself requires), he must study, understand, and apply the original meaning of the constitution.  To do this would lead an honest public official to uphold Montana’s rights and duties as an independent and sovereign State, not based upon de facto federal law or on “laws of conquest”, but upon the constitution.

C. Amendment Process—During Reconstruction Period and After

Shockley overlooks the historical context of the Civil War and does not consider that the tenth amendment was left intact, as is, after the Civil War. This is more than significant.

There was not a better time in history to rid the constitution of the tenth amendment than during the Reconstruction Period. The Reconstruction Period was a time where three constitutional amendments were proposed. No attempt was made to eliminate, change, or undermine the tenth amendment. Nor was a “treaty of peace” ever executed to explain how the tenth amendment meant something different than originally intended. Quite the opposite, the fourteenth amendment reconfirmed and solidified the terms of the constitution, including the tenth amendment, and the duty of every public officer to uphold it.

If the Civil War changed the nature and character of the constitution by destroying the meaning of the tenth amendment, then Shockley will have a hard time explaining why they left the tenth amendment in place during that period. And if the tenth amendment and its true meaning can be wiped off the face of the constitution by force alone, what other provisions in the constitution would Shockley say the federal government can eliminate by force?—the second, fourth, and fifth amendment? And would he submit to that force and bring Montana down with him?

It would be interesting, to say the least, to see how Shockley would write a legal brief on an issue regarding Montana’s rights and obligation with his theory about the Civil War’s effect on our constitutional rights. Shockley would have an impossible task of explaining how we are to interpret the constitution at all. And if my life and rights as a Montanan were on the line in a battle with the federal government, I would be shaking in my boots if my attorney viewed the constitution the way Shockley does.

Moreover, what are we to expect from Montana’s top law enforcement officer when his view of Montana’s rights and obligations are not seen through the lens of the constitution? To say the least, his campaign slogan, “Standing up for Montana”, is more than questionable and has no application relative to its relationship with the federal government.

In a day where federal encroachment and plenary actions are common, Montana does not need a federal government lapdog in its top law enforcement seat. We need an Attorney General who understands what the constitution requires from both State and federal governments and is willing to use the Attorney General’s position accordingly.

D.     Federalist Papers and Founding Father Understanding

Perhaps leeway should be given. After all, attorneys are not trained to understand the meaning of the constitution. I know: I obtained my Juris Doctorate from an ABA-approved law school like most attorneys. Attorneys are trained to read and apply court opinions. To understand the constitution, one must take initiative to study its origins and history. He must also study just as intently Enlightenment Philosophy—philosophers like John Locke, Algernon Sidney, Charles Montesquieu, Emer de Vattel, Jean Jacques Burlamaqui, Samuel Pufendorf, Jean Rousseau—because their writings formed the basis of American political thought.

One very important volume to know intimately is the Federalist Papers. Yes, these papers are very relevant to understand the constitution—Newt Gingrich referred to them as a basis for his republican debate comments about dealing with the liberal federal judiciary when he was interviewed by Sean Hannity post-debates on December 15, 2011.

These papers were written by three of the founders who were trying to convince the States to ratify the constitution. Alexander Hamilton was the leading Federalist of his day and was the first U.S. Secretary of Treasury; James Madison was the “father of the Constitution”; and John Jay was the first United States Supreme Court Chief Justice. As a group, they were responding to the constitution’s objections and demonstrating why the United States Constitution would protect the sovereignty of the States, which was the main concern of all the States.

Here is the crux context of the discussion: “marking the proper line of partition between the authority of the general and that of the State government” (James Madison, Federalist Paper 37). No state would have ratified the constitution where States’ rights were not plainly and adequately protected from the federal government. By “marking the proper line”, the founding generation thought “the new federal government…[would] be disinclined to invade the rights of the individual States” (James Madison, Federalist Paper 46).

(How would the federal government be disinclined to invade Montana’s rights with Shockley’s view of the constitution? What threat does Montana pose to a usurping federal government when Shockley or a similar-thinking attorney sits as our Attorney General?)

The Federalist Paper discussions on this topic are no small deal. Retaining state sovereignty was literally the pin holding the union’s door on the wall. During these discussions, it was cemented as fundamental to understanding the constitution that “the States will retain…a very extensive portion of active sovereignty…[whose powers] are numerous and indefinite”; and the “powers delegated…to the federal government are few and defined” (James Madison, Federalist Paper 45).

How were these ideas injected into our ratified constitution? and how is this balancing formula maintained? Below are samples of what the Federalist authors discussed concerning the tenth amendment and the power of the States to protect their sovereignty from federal intrusion.

1) On the Supremacy Clause

A first principle is established: only constitutional laws are supreme. In Federalist Paper 27, Hamilton said regarding the U.S. Constitution’s supremacy clause,

“the laws of the Confederacy[i], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS.”

Hamilton demonstrates that only those laws passed pursuant to the constitution are the supreme law of the land. All others are null and void. This goes hand and hand with the understanding that the States retained all powers not expressly delegated to the federal government. The people (the sovereigns and creators of our governments) only have 100% of the pie to slice. This is the manner in which the governments were thus formed: what was not expressly reserved by people was delegated to the States to govern; what was not expressly delegated to the federal government was respectively left to the States and the people to govern.[7]

This understanding was reiterated throughout the Federalist Papers because there was an argument made against the constitution; namely, that Congress would justify “an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare” (Federalist Paper 41) by using general empowerment language in the constitution, such as the general welfare and supremacy clause.

Madison refutes the argument, saying, “No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction” (Id.). Madison rejects the notion that the constitution gives Congress the “authority to legislate in all possible cases” (Id). (See also, Federalist Paper 41, for detailed exposition.)

Just because Congress passes a federal law does not mandate its supremacy over the States. However, to Shockley the question of the federal laws’ supremacy is not related to being constitutionally correct, but rather to mere power and force.

2) On the State Legislators’ Duty to be the Voice and Arm of the People’s Discontent with the Federal Government

Concerning the practical application of state sovereignty regarding federal usurpation, Hamilton said in Federalist Paper 26,

“State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent” (emphasis added).

Hamilton further reasoned in praise of the constitution that the States’ right and willingness to guard the liberties of the people was a primary reason not to fear federal tyrants any more than State tyrants. Hamilton observes that where the federal government usurps constitutional authority, the people will have “the advantage of local governments to head their opposition [against the federal government]” (Federalist Paper 61).

This description of the States’ power to ward off federal encroachment is what James Madison referred to as “active sovereignty” in Federalist Paper 45. This is so because “each [government] ought to depend on itself for its own preservation (Alexander Hamilton, Federalist Paper 59).

Being the guardians, alarm, voice, and the arm of the people in opposition to unconstitutional behavior cannot be reconciled with Shockley’s version of the constitution.

3. On the Difference Between the Articles of Confederation and the United States Constitution re: State Interposition Against Federal Actions

Hamilton explained how in the Articles of Confederation, a State could stop federal laws by “passive nullification”. That is, all the State had to do was not vote for the federal bill proposed since unanimous State approval was required for passing a federal law (see, Federalist Paper 22). Under that system, one State could and in fact did prevent the federal government from executing laws that the other twelve States approved. Admittedly, this was a major flaw. The federal government needed more energy and efficiency to execute constitutional laws for the good of the people in general.

To answer the questions concerning the new constitution, Hamilton explained that the States could not passively nullify a federal law, but that they could actively interpose themselves against an unconstitutional federal law. In Federalist Paper 16, Hamilton explained a first principle of the constitution and encouraged the people to ratify the constitution with this demonstration of state sovereignty:

“The plausibility of this objection [to the U.S. Constitution] will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE [under the Articles of Confederation] and a DIRECT and ACTIVE RESISTANCE [under the U.S. Constitution]…Attempts of this kind [i.e. direct and active resistance] would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority” (emphasis added).

The constitution did not deprive the States of the ability to interpose against the federal government; but it required the State to take direct and active steps in doing so. In so doing, the people “would throw their weight” (Id.) into the correct position and influence the outcome. As put in Federalist Paper 28, Hamilton said, “The people, by throwing themselves into either scale [State or Federal], will infallibly make it preponderate.”

Obviously, where the Montana’s Attorney General does not believe in the right of the State to protect itself from federal usurpation, the people will not even have a chance to throw their weight into any scale because no scale exists. They will be forced to comply (or move to a different state) as Montana would become the federal government’s agent of unconstitutional action.

4. On Federal Usurpations and the Duty of the People and State Governments to Check Them

Hamilton said in Federalist Paper 28,

“The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them…[I]n a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.

“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”

It is a wonder how, under Shockley’s view of the constitution, the States can “afford complete security against of the public liberty by the national authority” where he views federal power not based upon the limits of the constitution but upon the Civil War; and where all de facto federal laws automatically trump the right of the State to govern itself.

                        5. On the Nature of Federal Usurpation

Hamilton said in Federalist Paper 33,

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded…

“But it is said that the laws of the Union are to be the SUPREME LAW of the land…[A]cts of the large society [federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [States], will [not] become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such” (emphasis added).

To Hamilton, acts of usurpation by the federal government were deserved to be treated as null and void—without legal effect and without due submission. To Shockley, all federal laws are supreme over the States and individuals and deserve to be treated as such—complete submission.

6. On How the States Would Interpose Against Federal Encroachment

Madison said in Federalist Paper 46,

“Were it admitted…that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter [States] would still have the advantage in the means of defeating such encroachments…The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty…[T]he means of [State] opposition to [federal encroachment] are powerful and at hand.

“But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole…But what degree of madness could ever drive the federal government to such an extremity.”

There is hardly a clearer picture of “active sovereignty” than this. Madison describes a contest between the State and federal governments, whereby the States would use all of their political power to thwart and resist federal usurpation. Madison’s description uses words that reveal active sovereignty of the States; such as, “animate”, “conduct the whole”, “correspondence [with other States] opened”, “defeating such encroachments”, “the means of opposition”, “plans of resistance”, “signals of general alarm”, and “common cause”.

Madison’s description of the relationship between the State and federal government does not fit well with Shockley’s view. Who is correct?–Shockley or James Madison? Montana would do well to side with the father of the Constitution.

V. Conclusion

With attorneys and judges like Shockley who hold shocking views of the constitution, it is no wonder the States’ powers are diminishing daily and the federal government’s power grows daily. Still, we gripe and complain because of the unconstitutional behavior of the federal government.

Our plight is not untraceable. We are voting people into high office who do not have a clear understanding of the constitution’s most basic meaning and function. Our election choice should not be based upon whether we like the person, or think he is a nice guy. Personalities are irrelevant in this regard.

Hamilton said in Federalist Paper 28, “the obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them.

How can we expect Montana’s citizens to understand their rights and to be disposed to defend them when the top law enforcement officer of Montana does not know them? Moreover, how can we expect to maintain and defend the constitution where Montana’s Attorney General holds all federal laws superior to Montana’s regardless of constitutional limitations? What can we expect from an Attorney General who claims he will “Stand up for Montana”, but has a distorted concept of what that means?

[1] “One hundred and seventy-three despots would surely be as oppressive as one…As little will it avail us, that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced…that no one could transcend their legal limits, without being effectually checked and restrained by the others.” James Madison, Federalist Paper 48.

[2] “The internal effects of a mutable political are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood”. James Madison, Federalist Paper 62.

[3] “[W]e must look for [the constitution’s meaning]…in the State Conventions, which accepted and ratified the Constitution”. Kurt Lash, Meaning of an Omission, citing, 5 ANNALS OF CONG. 776, James Madison (1796).

[4] “They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide.” James Madison, Federalist Paper 14 (emphasis added).

[5] For example: “If the [federal] representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government.” Alexander Hamilton, Federalist Paper 28. “If such presumptions [of federal tyranny] can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person.” Alexander Hamilton, Federalist Paper 26 (emphasis added).

[6] “[We are called upon to decide whether] societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” Alexander Hamilton, Federalist Paper 1 (emphasis added).

[7] Compare: Montana’s constitution has no delegation of authority to the state of Montana, but only a reservation of powers under Article 2. However, the United States Constitution enumerates specific powers to the federal government in Article 1 and reserves all remaining powers under the tenth amendment. Thus, the nature of the state and federal government is different, as was thoroughly discussed by the founders.

[i] The United States Constitution was often referred to as a Confederacy.


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