Update: Nullification resolution with teeth: ResistDC: The State Authority and Anti-Racketeering Act:

If teeth is what you want, you need to go no further than Georgia. House Bill 880 (HB880), introduced by Representative Bobby Franklin, is called the “State Authority and Anti-racketeering Act.”

Unlike the many 10th Amendment Resolutions that have been introduced around the country since 2008, HB880 is legally-binding legislation…

…that state governments not only have the right to resist unconstitutional federal acts, but that, in order to protect liberty, they are “duty bound to interpose” or stand between the federal government and the people of the state.

House Bill 880 includes strong language to assert this principle:

Any actions taken by the federal government through its agents or employees that are not authorized by the Constitution of the United States are unlawful; and being unlawful, they are criminal offenses against the affected parties

This bill would make it a crime – with imprisonment for up to 30 years for each offense – for “any judicial officer, law enforcement officer, agent, or employee of the federal government, any multinational government, any international government, or any global government” to attempt to “enforce any federal, multinational, international, or global law” reserved to the State of Georgia under the 10th Amendment to the Constitution.

As of this writing, the bill has had two readings in the Georgia House. Will such a strong piece of legislation go anywhere? Only time will tell. The reality, though, is this – it’s going to take some serious effort to push back against decades and decades of unconstitutional federal acts.

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News today at Hot Air via Townhall: Dem sources: Senate “fix” for ObamaCare could add another $300 billion to price tag; Update: Dems ready for reconciliation, says Kyl

As the saying goes – strike when the iron is hot.

Many of my friends will disagree with me this is the time or that healthcare is the issue to fight the nullification battle and start the long journey back to re-asserting states rights; it is a nasty and drawn out process, not an event as many would think. There is the beginning, a middle, and an end. The middle and the end are often, shall we say, fraught with peril. However, given the sheer level of contempt the Democrats are preparing to level at the American public it is clear the time for niceties is over. And I am not talking about the nullification of just the individual mandate which, if successful, may only serve to usher in more quickly the single-payer system, I am talking about the nullification of the entire bill. I’ll go even further and suggest that as many states as possible draft and pass legislation that would allow that state to nullify any federal law which violates state sovereignty. What I am talking about is an virtual (not literal) act of war by the states against the federal government. It would not be pretty; it would not be easy. Continuing a campaign of pressure against the federal government while steadfastly supporting state’s governors and legislators as they embark on this journey of defiance requires great skill, leadership, patience, and gumption. So get ready.

In his excellent piece A short history of the destruction of state sovereignty, a worthy read in itself, Dr. Hunter notes the following regarding the rolling back of tyrannical federal powers:

But, it won’t be simply a matter of untying the knot or walking this cat back. It is impossible to simply retrace the steps that brought the American political system to its present perilous situation; it will require courage, steadfastness, truculence, defiance and a will of iron to stand up to Washington and stand down the power of the federal government. It will be an undertaking not in principle different from but even more daunting and difficult than the Civil Rights Movement, namely reviving America and restoring liberty by overcoming oppressive government that is acting illegally and immorally with a pointed gun under the color of law.

Later, Dr. Hunter goes on to say (emphasis mine):

After spending several weeks traveling around the country speaking at grass-roots events and Tea Parties, I am impressed by the pent up anger at the federal government spilling out across the land. It is diffuse and largely unarticulated but it is real, and it is growing.

I also am impressed by the actions already taken and under consideration in several states to re-establish state prerogatives and “sovereignty”—from unilaterally withdrawing from the federal government the authority to regulate guns manufactured, sold and used solely within the confines of the state (MT & TN), to opting out of national healthcare (AZ) to consideration of refusing to be ensnarled in cap-and-trade (IN).

It is a messy, boisterous process and mass movements such as the Tea Parties frequently get it wrong in their enthusiastic assertions about what is and what is not constitutional. That said, there may be a kernel here—“state sovereignty”—around which a movement may be coalescing and the Spirit of ’98 revived.

But, the state sovereignty movement must be about more than simply unfunded federal mandates; it must go beyond making intergovernmentalism efficient and bearable; it must aim to revive genuine federalism in order to restore individual rights and personal freedom.

Certainly, to be a lasting political force, the Tea Parties need a focus rather than simply running around making noise and venting their frustrations. But time is not likely to wait for the intricate schemes and the best laid plans of man; from the sorry looks of states such as California and plans the current administration has in hand for a complete takeover of everything in sight, events may take on a life of their own.

In the not too distant future, America may face a spontaneous and violent crackup designed by no one but out of the control of anyone, followed by a backlash of severe national-government oppression and tyranny. That is why it is vital for citizens to get ahead of the curve and organize a peaceful rebellion against Washington—a restorative revolution led by the natural depository of power—the States—which were intended by the Founders to be the locus of resistance to check an oppressive and tyrannical national government.

If the states do not intervene to halt the national government’s takeover of everything and act to restore some semblance of balance to the American political system, there is a real danger that Nobel Laureate Friedrich Hayek’s prediction in The Road To Serfdom will come to fruition. Hayek feared that in times of turmoil and hardship, the appeal of dismantling the free-market system under the allure of central planning and the distemper of envy and fear would inevitably place society on “the road to serfdom,” which ultimately ends in the destruction of all individual economic and personal freedom.

Hayek argued that once a society progresses sufficiently far down the road to collectivism and consolidated central control, the failure of central planning would be perceived by the public as an absence of sufficient power by the national government to implement an otherwise good idea. According to Hayek, such a perception would lead the public to vote more power to the national government, and ultimately allow a “strong man” to rise to power. Once a charismatic strong man who is perceived to be capable of “getting the job done” consolidates his power, Hayek foresaw the ultimate and ineluctable descent into outright totalitarianism.

Or, America may traverse the road to serfdom via another route. Rather than a strong-man takeover, a consolidated and centralized national government may instead visit upon the American people tyranny by committee every much as destructive of economic and personal liberty as the rule of any strong man.

Although all the wounds of slavery, segregation and the Civil Rights Movement may not yet be behind us, it may be, one hopes, that they are sufficiently healed to allow a critical mass of Americans from all walks of life to join together and rejuvenate their states. To revive American liberty and restore our constitutional republic, people will have to rediscover their courage to resist the way Martin Luther King and his followers resisted. But whereas civil rights activists looked to the national government as the font of legitimacy to take down immoral and oppressive state laws, a restoration of freedom from national-government oppression will have to look to state governments as the font of legitimacy in resistance.

The Revive America Movement must begin by electing and supporting governors and state legislatures who will act with the Spirit of ‘98 in truculent and defiant resistance to Washington. It will require citizens standing shoulder to shoulder with their governors and state legislators to confront the federal government where possible, defy Uncle Sam where necessary and restore some semblance of balance to the American democracy before it is too late.

Reviving America and restoring liberty to Americans won’t be simple because we are too far down the road to serfdom for simple unwinding and backtracking. It is not self-evidently obvious what a true Restorative Revolution would look like but the civil rights movement offers a model that may be the last best hope we have before passing a point of no return.

As Redstate’s Brian Faughnan reports, Democratic pollster James Carville’s recent poll indicated just one-third of voters support ObamaCare:

Democrats are currently saying that no matter what happens in tomorrow’s Senate election, they will pass a health care rationing bill.

Now there’s some audacity for you.

I am reminded of our Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government.

The train of abuses has been long, and with the Brown win, President Obama is promising a combative turn. Translation: more abuses of federal power and even less attention paid to the will of the people. Therefore, it is time, in this author’s opinion, for the Tea Parties to work with state legislators and governors, standing shoulder to shoulder with them, unbending and stalwart in the battle for the freedoms and rights guaranteed to us by the Constitution. Together, state leaders and citizens must stare down the federal tyranny with an icy glare. So perilous is this journey that the path must be carefully prepared, our leaders steadfast, and our own resolve unbreakable. What of federal repercussions and our legislative preparedness to deal with them? Are each of us prepared, as in the civil rights movement, to resist in a passive-aggressive manner the abuses of the federal government with acts of civil disobedience? When will the movement reach critical mass, causing the federal powers to crumble under their own weight and lucre?

If the Senate or the House passes the current and very unpopular health care bill, especially if the process of reconciliation is used, this very well could be the tipping point, forcing our hand to take measures to ensure a federal government oblivious to the will of the public is spanked hard and spanked often until it caves to our will. As Orrin Hatch recently stated, the use of the process of reconciliation in the Senate is will lead to an all out war in that chamber. The states would not be far behind.

Already, we have seen the Democrats in the Senate vote, along party lines, to increase the debt ceiling to 14.3 trillion. Combined with the soft on terror approach of the current administration, balooning deficits, a Congress that seems hell-bent on ignoring the American public to the point of brazen arrogance and dismissal, an appology tour by nothing less than the President of the United States, a recent Executive Order by the Presidet that surrenders U.S. sovereignty to Interpol, and a host of other abuses that would fill a book, there is a growing sense that enough is enough.

It is interesting to note that many today believe the Supreme Court to be the final arbiter of all things within the borders of the United States while in fact this Court is only a check against the other two forms of the federal government, not the states. Where the Constitution is silent, the states can govern themselves.

From The Kentucky and Virginia Resolutions (emphasis mine):

The resolution explicitly disclaimed that the national government was the judge of its own powers. Allowing it to judge its own powers would be akin to permitting an agent, rather than the principal, to determine the breadth of the agent’s authority. The law of agency at its most basic level recognizes that an agent can act as such only subject to the consent and control of the principal to whom the agent owes a fiduciary duty (see Restatement [Second] of Agency, sec. 1). Just as A, B, and C, the partners in a business firm, decide what authority to give their agent Z, so the parties to the Constitution decide the powers of the national government. In light of such logic, Jefferson proclaimed in the resolution that “each party [to the federal compact] has an equal right to judge for itself, as well of infractions as of the mode and measures of redress” (Virginia Commission 1964, 144). For Jefferson, the people acting through their states — the authentic organs of government — were the final arbiters of constitutional interpretation. Jefferson feared that giving the federal government the exclusive power to interpret the Constitution through the Supreme Court would lead to arbitrary government. As John Taylor later wrote in his Construction Construed and Constitutions Vindicated, “a jurisdiction, limited by its own will, is an unlimited jurisdiction” ([1820] 1970, 131). With the states stripped of the power to construe the Constitution, the enforcement of constitutional limitations on the central government would be chimerical. Thus, it is not surprising that none of the convictions under the Sedition Act were appealed to the Federalist-dominated Supreme Court. The Republicans did not want to give the Court an opportunity to set a dangerous precedent.

The public in each state must ensure its state government does not fold like a bunch of cheap suits when the federal government attempts its first act of retribution – the withdrawal of state funds. While money is a very powerful weapon, the stream flows both ways. Let us not forget our resolve nor allow our leaders in each state to ignore their constitutional duty to each citizen to fight for the rights of the state against the tyranny of the federal government. Let us not waver in the face of opposition from tyrants whose own audacity places them at odds with each of us. This is the time to use federal lucre and abuse of power to grab back the rights duly possessed by the states of this country. In this, the Supreme Court holds no sway over the authority of the states. The Constitution makes this clear. So long and slow has the erosion of state authority occurred, the we forget the people of this country and their respective states wield power over the federal government – not the other way around. Time has eroded our feeling of empowerment, and like pawns on a chessboard, we feel moved by the powers that be, forgetting that it is US that moves THEM. It is time to take back that power. It is time to save the future for our children and grandchildren. It is time to put the federal government back into its proper place. The road will not be easy, but if our resolve is strong, we can have back the country our forefathers left for us.

Update 1: While not a great Ron Paul fan, the an article at the Tenth Amendment Center basically lays out the same approach as above, but offers a few more details. I found the following to be highly interesting:

There are a whole host of peaceful actions that a state government can adopt if that day comes or appears to be just over the horizon. These measures range from county sheriffs requiring that federal agents receive written permission from the sheriff before acting in their county, to setting up a Federal Tax escrow account, which could potentially de-fund unconstitutional federal activities by requiring that all federal taxes come first to the state’s Department of Revenue.

Besides state interposition, the other thing Washington would have to consider, is whether enough of their agents would actually obey orders to punish people for exercising their constitutional rights. There is a significant chance that enough of them would either publicly or privately decide in advance to ignore such orders. As the probability of this increases, it becomes more likely that Washington will not risk overplaying its hand. The reality is that Washington just doesn’t have the manpower to enforce all their unconstitutional laws if enough states choose to defy them.

Of course, it all depends on the people of the several states: ordinary people like you and I. Although I’ve discovered that there are more elected representatives at the state level who are committed to acting in a courageous and principled manner than I ever dared hope, most of their peers lack such a brave commitment. Most of them will stick their head in the sand or sit on the fence until they determine which way the wind is blowing. And so it’s our opinion, not the opinion of the American people in aggregate, but our opinion as citizens of our respective states, that will influence the decision of our state representatives to either stand tall or to kneel down and knuckle under.

Living in Texas I am particularly interested in one of the comments:

We are developing nullification legislation for Texas that might serve as a model for other states. See http://constitutionalism.blogspot.com/2010/01/cautions-for-nullification-proponents.html

Proposed Components:

1. Commission. Establish “Federal Action Review Commission” – special commission with grand jury powers to meet continuously with rotating membership drawn from a pool of legal historians and constitutional scholars, appointed by the Governor, Attorney General, or Legislative Council; empowered to review the constitutionality of congressional legislation, or federal regulations or decisions, and if it finds such legislation, regulations, or decisions to be unconstitutional, to issue an edict, with the force of law, requiring that no state or local officials, employees, or contractors cooperate in the enforcement of it, and urging state citizens to refuse to cooperate. This Commission would be established by an amendment to the Texas Constitution.

2. Structure and procedure. The Commission shall consist of 23 members, who shall serve for staggered terms of 4-8 months, drawn at random from a pool of at least 230 constitutional scholars and legal historians, who shall meet for at least one hour once a week, with a quorum of 16, and a vote of 12 required to issue an edict, based on a presumption of nonauthority and requiring strict proof of constitutionality from logic and historical evidence. It shall be open to direct complaints of the unconstitutionality of federal actions from any citizen. It shall have the power to subpoena witnesses, and its deliberations shall be secret, except that it may disclose anything in its presentments. It may authorize criminal prosecution by issuing an indictment to any person, not necessarily a lawyer, upon a finding that the court cited has jurisdiction and that evidence of guilt is sufficient for trial.

3. Penalties. State and local officials, employees, and contractors shall be duly notified in writing of such edicts within ten days and shall have twenty days to comply or be subject to termination after one written warning and a second failure to refuse to cooperate.

4. Funding. Establish a state fund to pay for legal and financial support of state citizens and officials who refuse to cooperate with unconstitutional federal statutes, regulations, or decisions, with the intention to obtain judicial decisions that support the unconstitutionality of the federal actions.

Update 2: Another reason to start the nullification movement: Reconciliation flip-flopper of the morning

Update 3: Reconciliation, the public option, and Demcare revival

This entry was posted on Friday, January 29th, 2010 at 9:40 am and is filed under Health Care. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.