The Constitutional Settlements
Commission of the States
Commission Concept Explained
Author: Gary Marbut
(Link to proposed Interstate
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
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 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
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 simply be
inappropriate 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.