Nullification – Our Constitutional Option
Posted by G.J. Merits in Health Care, tags: amendment, bunning, center, Collins, court, democrat, federalism, gop, governor, healthcare, house, jefferson, jim, kentucy, malkin, michelle, nullification, Obama, obamacare, Republican, republicans, resolutions, rights, senate, sovereingty, state legislature, state's, supreme, susan, TAC, tenth, thomas, virginiaOne of the two main criteria for nullification to work is passion and the sheer number of states involved. If 20 or more states nullify ObamaCare there would be no way to enforce it. Read on.
The time to step up is now. We fight not just for our country, but for our families and for those not yet born. The information below is voluminous and it is merely a primer. Taking back our country requires understanding the power of the states in contrast to federal power. It requires we grasp the historical context of how the federal government absconded with powers the founders clearly never intended it to possess.
Michelle Malkin makes an excellent implicit case for why nullification is the only way back to federalism and the Tenth Amendment Center provides extensive education and commentary on the subject itself. Let us start with Michelle as she questions the ability of Republicans to lead us out of the sinkhole:
Now, I want you to read every word of what Andy McCarthy has to say about the GOP leadership’s abandonment of Jim Bunning — and what it says about the lack of Republican fortitude in the war against the permanent, ever-growing Nanny State.
Andy speaks the truth. Hard truths. And fiscal conservatives/Tea Party activists need to shout them from the rooftops. I’ve invoked Phyllis Schlafly many times over the past year in urging the GOP to provide true choices instead of echoes. Actions speak louder than words. So, alas, does feckless inaction.
Maine’s Susan Collins took to the Senate floor to assure Americans that Bunning’s radical views about Congress’s not spending yet more billions it doesn’t have “do not represent a majority of the Republican caucus.” And sure enough, they didn’t. Once Bunning backed down, the measure passed by a whopping 78-19.
Think about that. We are talking about $10 billion in a year when Leviathan is slated to spend a total of $3.6 trillion. The majority of Senate Republicans joined Democrats in concluding that the allocation of every one of these 3.6 thousand billion dollars is so vital that not one of them could be sacrificed in favor of unemployment insurance. So another $10 billion just gets heaped on the already unfathomable trillion-dollar deficits stacking year upon year.
Read the entire post. The realization that salvation exits with neither political party is an a priori and tacit argument the federal government is responsible for creating this mess and cannot, by design, be the architect of solutions to restoring fiscal responsibility and individual freedom. This is not to say principled politicians do not exist in Washington – I can think of a few – but most politicians are just that…politicians. Self-interested, disconnected, contemptuous elitists. For those in the Tea Party, it is a calculated risk that your candidate somehow is cut from a different cloth. In reality, you will fare no better than the average citizen. As I write these words, salivating, power hungry impostors wait to prey on the wishes and dreams of Tea Party members everywhere. I am your candidate, they will say. Even those with honest designs are not immune to the corrupting influence of Washington, for the system is fundamentally broken and it is impossible to remove a sitting member of Congress member. It is not, however, impossible to recall a governor or a state legislator in some states and it is here that Tea Parties, nullification, and real power collide in the perfect storm of the restoration of constitutional governance.
Those of you who follow this blog recall that a group of organizations successfully changed Senate GOP healthcare policy. The history of those efforts are here and cross-posted at Politico. Be forewarned, you will not like the narrative:
After weeks of refusing to embrace the “obstructionist” label as a virtue, Senate Republicans finally saw the light and late last week began to use the parliamentary tools at their disposal to delay a final vote on health care.
Until then, with the exception of South Carolina Sen. Jim DeMint, Republican lawmakers had refused to use Senate rules and procedures to obstruct the passage of the health care bill being pushed by Senate Majority Leader Harry Reid (D-Nev.) and run out the clock on Obamacare. Some prominent Republican senators and members of their staffs had even let it be known they actually believed passage of the Reid health care bill and enactment of Obamacare would benefit GOP candidates in the November midterm elections.
This GOP strategy of expedient complicity enraged the conservative base, roused talk radio show hosts and bloggers and even provoked a backlash from the chairman of the Republican National Committee. The Social Security Institute and the National Tax Limitation Committee joined with Tea Party Support and Gun Owners of America to convey this outrage to the Senate Republican leadership through letters, e-mails and telephone calls from the grass roots to GOP senators’ offices.
It took a figurative gun to the collective head of the GOP to add a little starch to collapsing spines. Had the switch occurred just a smidgen later, Scott Brown’s win in Massachusetts may well have occurred after the passage of ObamaCare.
To the GOPs credit, they continue to stick to obstruction and the promise of obstruction regarding ObamaCare. Their performance at the bipartisan healthcare “summit” was nothing short of amazing. However, the same tendencies against fiscal restraint still exist for many in the party, as outlined by Michelle in her post.
So what is one to do? The answer – nullification. No, nullification is not secession and no, nullification is not a violent act. The Tenth Amendment Center describes nullification as follows:
First, nullification has, in fact, been somewhat successful in the past and more recently as well. Second, as President Obama loves to say, “Let me be clear”: “Official” nullification has ALREADY HAPPENED.
Before I explain why “official” nullification has already happened, let me briefly give some examples of what nullification is NOT
Nullification is not secession or insurrection, but neither is it unconditional or unlimited submission. Nullification is not something that requires any decision, statement or action from any branch of the federal government. Nullification is not the result of obtaining a favorable court ruling. Nullification is not the petitioning of the federal government to start doing or to stop doing anything. Nullification doesn’t depend on any federal law being repealed. Nullification does not require permission from any person or institution outside of one’s own state.
So just what IS “official” nullification you might be asking?
Nullification begins with a decision made in your state legislature to resist a federal law deemed to be unconstitutional. It usually involves a bill, which is passed by both houses and is signed by your governor. In some cases, it might be approved by the voters of your state directly, in a referendum. It may change your state’s statutory law or it might even amend your state constitution. It is a refusal on the part of your state government to cooperate with, or enforce any federal law it deems to be unconstitutional.
Nullification carries with it the force of state law. It cannot be legally repealed by Congress without amending the US Constitution. It cannot be lawfully abolished by an executive order. It cannot be overruled by the Supreme Court. It is the people of a state asserting their constitutional rights by acting as a political society in their highest sovereign capacity. It is the moderate, middle way that wisely avoids harsh remedies like secession on the one hand and slavish, unlimited submission on the other. It is the constitutional remedy for unconstitutional federal laws.
With the exception of a Constitutional amendment, the federal government cannot oppose (except perhaps rhetorically), a state’s decision to nullify an unconstitutional federal law without resorting to extra-legal measures. But such measures would more than likely backfire, since most Americans still affirm that might does not make right.
There is no question as to whether or when “official” nullification will happen: It has ALREADY HAPPENED. In fact, not only has it happened recently, it has been a success! Perhaps this is why the federal government hopes you will never hear about it. According to the Tenth Amendment Center:
25 states over the past 2 years have passed resolutions and binding laws denouncing and refusing to implement the Bush-era law [REAL ID Act]..While the law is still on the books in D.C., its implementation has been “delayed” numerous times in response to this massive state resistance, and in practice, is virtually null and void…
…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.
More on federal tax escrow accounts and the willingness of federal agents to execute orders deemed unconstitutional below.
For more information about nullification I strongly encourage the reader to visit the Tenth Amendment Center (TAC) and type in nullification in the search bar. Lots of very interesting reading. Additional information can be found at the Social Security Institute.
The TAC also writes Our Goal is Federalism, not “States’ Rights”:
Foundationally, states don’t have rights as a government, states have power. Power at the federal and state level is derived from the consent of the governed, the people, who do have rights our governing agreements were designed to protect. Inspired by careful historical study, years of debate, considerations, and the declarations of colonies, towns, and associations (prior to July of 1776) the fundamental rights of the people were articulated in the preamble of our Declaration of Independence…
…Let every member of every organization supporting state sovereignty and federalism cleanse the language so our opponents cannot easily attack the wrong target. Should they target federalism and the original meaning we can defeat them with truth. Freedom is not outdated, federal government is an agreement among the people of different sovereign states, the 10th Amendment has never been repealed, and virtue is still necessary for securing our posterity’s future rights to life, liberty, and the pursuit of happiness
So if I were to ask you to identify the final arbiter of the U.S. Constitution, the correct answer is not the U.S. Supreme Court, but rather the states themselves. Allowing the U.S. Supreme Court – part of the judicial branch of the federal government – to rule on federal powers presents a problem. Dr. Larry Hunter informs us (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.
If we remain sheep, apathy lays the foundation for us and our descendants of a people enslaved to the whims of a capricious few. Nullification begins with the state legislative and executive bodies, when the previously lorded over sheep transform into self-reliant wolves. It requires of us and our state leaders great strength of character and leadership. If they are not up to the task – we can replace them. At times, we must be prepared to stand with them shoulder-to-shoulder – literally and figuratively. The goal of any nullification movement is critical mass. Using ObamaCare as an example – assuming it passes, if enough states nullify the law and governors coordinate the effort with the will and strength of the people at their backs, ObamaCare will collapse. Federal repercussions will be swift:
When I talk to people about these principles – most agree, like Martin Luther King Jr. said in his famous “Letter from Birmingham jail,” that there is a moral responsibility to disobey unjust laws. But, they’ll often ask, even if states pass laws to nullify unjust and unconstitutional federal acts, the feds will still continue to tax us and punish our states financially for not complying – so what can we REALLY do?
One idea, which will take a great deal of courage on the part of the People and their state governments, is to establish what’s being called a “Federal Tax Escrow Account” or a “State Authority and Federal Tax Funds Act.”
Already introduced in Georgia (HB877), Oklahoma (HB2810), and Washington (HB2712), such laws would require that all federal taxes come first to the state’s Department of Revenue. A panel of legislators would assay the Constitutional appropriateness of the Federal Budget, and then forward to the federal government a percentage of the federal tax dollars that are delineated as legal and Constitutionally justified. The remainder of those dollars would be assigned to budgetary items that are currently funded through federal allocations and grants or returned to the people.
Naturally, the U.S. Supreme Court would label such an act unconstitutional, but as stated above, such an action by the Supreme Court amounts to empty words and rhetoric. The natural progression of such actions, given enough states and a determined populace, will be the nonviolent return of federalism. While it is possible events unfold in such a manner leading to a showdown between, for example, national guard troops and/or civilians and the U.S. military, it is highly unlikely the U.S. Military will follow orders that are obviously unconstitutional. After the forceful removal of guns from citizens in the aftermath of Katrina, many in law enforcement and the military began a serious a deliberate debate on the issue. Oath Keepers states the following on their site:
The time is now near at hand which must probably determine, whether Americans are to be, Freemen, or Slaves; whether they are to have any property they can call their own; whether their Houses, and Farms, are to be pillaged and destroyed, and they consigned to a State of Wretchedness from which no human efforts will probably deliver them. The fate of unborn Millions will now depend, under God, on the Courage and Conduct of this army” — Gen. George Washington, to his troops before the battle of Long Island
Such a time is near at hand again. The fate of unborn millions will now depend, under God, on the Courage and Conduct of this Army — and this Marine Corps, This Air Force, This Navy and the National Guard and police units of these sovereign states.
Oath Keepers is a non-partisan association of currently serving military, reserves, National Guard, peace officers, fire-fighters, and veterans who swore an oath to support and defend the Constitution against all enemies, foreign and domestic … and meant it. We won’t “just follow orders.
Included in the link is a list of orders member will not obey.
We can take great lessons from Martin Luther King, Jr. and his approach to the civil rights movement, as well as Gandhi and the issue of British colonialism in India. A passive-aggressive approach can work if executed correctly.
It is no longer the case that most of us sacrifice for our freedoms. We know of those who did so in the past and do so even today. We honor them on special holidays and then go about our business. Lately, some find themselves prone to attend rallies, send faxes, call and email their federal representatives, only to sit back and watch Washington arrogance ignore our calls for sanity.
It is now clear to many the way forward – the only way forward – is through the states. We may slow our slide into fiscal disaster and European style socialism with leveraged federal pressure, but inaction at the state level – read nullification – we only delay the inevitable. So now is the time to begin. Now is the time to transform.
The sovereignty of the British at the time of the War of Independence was in the Parliament. The founders knew this and ensured the constitution would not allow for concentration in a centralized power for a few to lord over the many. The final arbiter of the constitution is not the Supreme Court, but rather the states. This is something rarely taught in law school and constitutional courses concentrate on case law and not on the historical context of the founding document itself. When the historical context is reviewed, it is clear, as Jefferson warned, that allowing a federal judicial system to check the federal powers was patently absurd.
The Kentucky and Virginia Resolutions of 1798, written in secret by Jefferson and Madison in response to the Alien and Sedition Act, which would have jailed them for speaking out against the government, clearly made the above case and the case for nullification. Nullification is not secession – it is a state saying the federal powers have no right to execute a law within the borders of that state. Now look back to the context of the War of Independence. A tiny island off the coast of France has now been replaced by a city in DC. We are back where we started.
Perish as sheep, or thrive as a wolves.
Highly Recommended Reading:
The Politically Incorrect Guide(tm) to the Constitution (Politically Incorrect Guides)
The Politically Incorrect Guide to American History
The Politically Incorrect Guide to the Founding Fathers (The Politically Incorrect Guides)
Related:
Listen to Judge Napolitano as he talks about nullification and secession. Personally, I don’t believe secession is necessary nor really an option. The very thought of it conjures images of violent battles. Nullification is the peaceful means to taking back our liberties under the Constitution.
More reason to start now: New House Dem strategy on ObamaCare: hostaging
How do you spell “tone-deaf?”; Update: Obama joins the cheerleading squad
State Sovereignty is About You!
The Obama way: Bluster, bully, bribe
Health Care Nullification: Things have just gotten underway
Nullification: The states have a “nuclear option,” too
Federal Law is Always Supreme. Right?
Hoyer: We could totally draft an anti-abortion bill that will get considered … by Democrats
Note To GOP: Our Freedoms Are No Longer Negotiable
Will Stupak be bought on Demcare?
If you want to go fast – go alone. If you want to go far – go together.
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