The Supreme Court’s Game of Thrones

Tenth Amendment Center: Constitutional Conversation

Cross-posted from the Pennsylvania Tenth Amendment Center.

“In a room sit three great men, a king, a priest, and a rich man with his gold. Between them stands a sellsword, a little man of common birth and no great mind. Each of the great ones bids him slay the other two. ‘Do it’ says the king, ‘for I am your lawful ruler.’ ‘Do it’ says the priest, ‘for I command you in the names of the gods.’ ‘Do it’ says the rich man, ‘and all this gold shall be yours.’ So tell me—who lives and who dies?”

In George R. R. Martin’s “A Clash of Kings” from the Game of Thrones series, the royal advisor, Varys, poses the riddle above to Tyrion, who is the “Hand of the King” – the second in command in Martin’s fictional kingdom. After leaving Tyrion to puzzle over this riddle for a while, Varys gives us his answer a bit later.

“Here, then. Power resides where men believe it resides. No more and no less.”

Varys then goes on to observe that power is, “A shadow on the wall,” and that “oft-times a very small man can cast a very large shadow.” In other words, Varys’ hypothetical mercenary will obey the instructions of the man who is most powerful, according to that mercenary’s own perceptions. Whatever real assets the three may have, it is the sellsword’s perception of the relative strength of the “great men” that will determine who lives and who dies. Ultimately, it is the sellsword, not the great men, who holds power over life and death.

While this dialog takes place in a fictional novel, I believe that it does provide a useful insight into our own world. Here in America, more than 300 million people obey the laws which are brought to life by just 436 people and ultimately adjudicated by just nine others. This would not be possible if the 300 million refused to comply. Why do we comply, even when we may disagree with a certain policy? Because we have been brought up to believe that nearly all power resides in Washington, DC.

Unfortunately, this belief is incorrect. For most powers, we should be looking to Harrisburg and the other state capitals. James Madison told us the truth of the matter, quite clearly, in Federalist #45.

The powers delegated by the proposed Constitution 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 last the power of taxation will, for the most part, be connected.

Unlike many today, Madison, who was known as the “Father of the Constitution”, believed that Washington’s powers are “few and defined” – excercised principally on external objects, as war, peace, negotiation, and foreign commerce. He also believed that numerous and indefinite powers reside with the state governments. This understanding is confirmed by the Tenth Amendment, which states,

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

While they don’t always do so well on the Constitution, I do think that the Supreme Court has an excellent understanding of Varys’ riddle. Certainly, these nine people cast a very large shadow. If they don’t understand his riddle, then how else can we explain Wickard v. Filburn and related cases? In these cases, the Supreme Court has claimed that the power to regulate commerce “among the several states” enables Congress to regulate how much grain a farmer can grow on his own farm and feed to his own animals. Saying,

“even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress”

If the Supreme Court doesn’t understand Varys’ riddle, how can we explain this summer’s Obamacare decision which claimed that the penalty if someone declines to buy health insurance from a private company is, simultaneously, both a tax and not a tax?

If the Supreme Court doesn’t understand Varys’ riddle, how do we explain the fact that it has, without ratification by the states, adopted an ad hoc Constitutional amendment process known as the “Living Constitution“?

If the American people didn’t believe that power resides in Washington, would we do anything other than laugh at this nonsense? The court gets away with this absurdity only because we believe that the court has the power to do it. The reality, though, is that we have the power to make them stop. The Declaration of Independence tells us so.

“Governments are instituted among Men, deriving their just powers from the consent of the governed”

Unfortunately, as a society, we continue to consent to nonsense. By now, the solution to this problem should be clear. In 1811, Pennsylvania’s own legislature told us what it was.

“Should the general government in any of its departments violate the provisions of the constitution, it rests with the states, and with the people, to apply suitable remedies.”

It is time, now, for Harrisburg and the other state governments to reclaim the numerous and indefinite powers which have been reserved to them. It is time, now, for Harrisburg and the other state governments to apply suitable remedies. It is time, now, for our society to believe that ultimately, all power resides with the people – not with the supposed great men in Washington.

Here is the plain fact. We the people made an agreement, through our state ratifying conventions, that we would follow the Constitution. This Constitution that we agreed to follow doesn’t say a word about who gets the last word in interpreting a law. Is it a state? Is it an individual? Is it the Supreme Court? Is it the Pope in Rome? The Constitution doesn’t say. And the fact that it says nothing specific means that the Tenth Amendment applies. This power was never delegated to the court. Therefore, it is reserved to the states and the people. Under the US Constitution, we can argue over whether the state government or the people get the last word, but the Constitution’s silence on the matter makes it quite clear that the federal government does not get the last word on interpreting a law. We, not Washington, are the ones who are empowered to decide when a law violates the Constitution. Believe it.

In Martin’s novels, the power struggle is waged with swords and bows, daggers and poisons. In America, our contests for power happen in the courts and the legislatures, but Varys’ axiom is no less true. “Power resides where men believe it resides. No more and no less.”

When we believe that all power resides in Washington, nine men and women on the Supreme Court cast a shadow that covers 300 million people and the better part of an entire continent. This is not the system of limited government that was intended by our founders or accepted by our ancestors. It is time for change. Whenever the federal government exceeds its delegated powers, it is our right and our responsibility to recognize that the power being claimed is prohibited from residing in Washington. It is our right and our responsibility to stop believing that anyone has the power to make us consent to nonsense.

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