Candidate for MT. Attorney General, Shockley, Holds Shocking View of the Constitution


Candidate for Montana Attorney General, Jim Shockley, stated while sitting in his official capacity as Montana Senator that 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.

Read the rest of article picking up at “IV.”

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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).

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