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Wednesday, November 28, 2012

Nullification: The Duty and Right of the States-Pt. 1
by KrisAnne Hall

After perceiving a long train of usurpations of power by the federal government, which culminated in legislation known as Obamacare many Americans took to the streets in protest.  They appealed to the Legislature to no avail. The legislation ultimately made its way to the Supreme Court.  We then witnessed a colossal rewriting of our founding documents in the majority opinion to the Obamacare mandate.  Justice John Roberts in a few lines pulled down the pillars of the Republic and set us on the path to totalitarianism. Nearly half of the population rightfully regards this legislation as extending far beyond the enumerated powers of the federal government.  The truth is, not only should the Sates be able to deal with their own health insurance issues, but the federal government has no legitimate authority to rule by such dictates.  Yet, many who vowed to fight it “to the end” have now acquiesced and declared that it must be submitted to as “the law of the land.”  So is this the end?  Since SCOTUS made its declaration from on high, must we now bow to an all-powerful government, from which no area of our daily life is off-limits?  Or is there a remedy yet remaining?  Can the States legitimately resist federal law or is this "treasonous" as some have suggested?

To answer these questions we must first understand the nature of the Republic we call the United States.  These States are “United” in a compact, the Constitution.  This compact, or contract, made among the States not only the created the federal government but also dictated the limited and specific powers delegated to the federal government by the parties of this contract.   Secondly, since the States are the parties to the compact and the creators of the central government, then the States, naturally, are the masters of their creation.  That is to say, they are sovereign - independent of, separate from and sovereign over the federal government.  All of the powers not delegated to the federal government remain with the States and the people.  The 10th Amendment makes that very clear.

"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." 10th Amendment to the US Constitution

It is upon this foundation that the States have the ultimate right to stand against ANY unconstitutional law created or enforced by the federal government.  The 10th Amendment declares that the federal government is to only operate within their delegated powers.  James Madison explains those delegated powers in Federalist Paper #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…”  Federalist Paper #45

Madison then goes on to explain “the powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.  Federalist Paper #45

Therefore, the 10th Amendment in conjunction with Madison’s explanation makes it clear that the States’ powers are numerous, the federal powers are few, and the federal government has no business interjecting itself into the powers reserved to the States. To claim the 10th amendment says anything else would make the Constitution a complete absurdity. 

Since there are no areas of power that are simply floating out in the neutral zone waiting for someone to use them, if the federal government uses a power that was not Constitutionally delegated, it must steal it from the States.  When the federal government does this, it removes power from the States, rights from the people, and makes the Constitution completely meaningless.  Such overreach sets the precedent that no power is reserved to the States and that all power is open for federal taking.  This effectively nullifies the 9th and 10th Amendments, and destroys the Constitutional barriers established to contain a limited and defined federal government.  What will then be the federal government’s limitations? Nothing but its own will. 

“That they will view this as seizing the rights of the States, and consolidating them in the hands of the general government, with a power assumed to bind the States, not merely in cases made federal, but in all cases whatsoever…that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority…” Thomas Jefferson, Kentucky Resolutions of 1798

This is, in essence, what Justice Roberts declared in his opinion on Obamacare, overturning the very purpose of the Constitution itself – to enumerate the powers of a limited central government and bind it under the authority of the States.  What happens when the barriers of the Constitution are completely swept away?  The federal government will now have the ability to exercise any power over the States whatsoever.  The people will be rendered completely powerless and irrelevant.  What will be the purpose of elections then?  We will no longer be a republic, but a government ruled as a Kingdom.

“…for the federal government toenlarge its powers by forced construction of the constitutional charter which defines them…so as to destroy the meaning and effect of the particular enumeration which necessarily explains and limits the general phrases…the obvious tendency and inevitable result…would be, to transform the present republican system of the United States into an absolute, or, at best, a mixed monarchy.”  James Madison, Virginia Resolutions 1798

So, when the Legislative, Executive and Judicial branches of the federal government have collectively torn through the boundaries set by the Constitution, and the people have no recourse in the federal system, what is the remedy?  What is the proper course when the federal government has gone rogue?  The drafter of the Declaration of Independence, Thomas Jefferson and The Father of the Constitution, James Madison speak very clearly on the position of the States as the sovereign defenders of the foundations of our Republic.  It is the founders of the Republic who must give us our remedy…

by KrisAnne Hall

James Madison gives us this answer regarding the remedy to the states for combating federal overreach. In fact, according to our founders, it was not only the remedy but the DUTY of the states to stand in defense of the Republic.

“…in the case of deliberate, palpable, and dangerous exercise of other powers not granted…the states…have the right, and are in duty bound, to interpose, …for maintaining, within their respective limits, the authorities, rights, and liberties…” Virginia Resolutions of 1798 James Madison

What is this interposition? It is what Jefferson referred to as NULLIFICATION of the unauthorized acts of the federal government.  It is the States declaring, “The federal government is NOT our master, the States and the people are the masters of the Constitution and we do not have to, nor will we comply!” 

“Whenever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force.” Thomas Jefferson, Kentucky Resolutions of 1798

Nullification is legitimate act of refusing to implement unconstitutional federal directives.

“That the several states who formed [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and, That a nullification, by those sovereignties, of all unauthorized acts done under the color of that instrument, is the rightful remedy.”  Thomas Jefferson, Kentucky Resolutions 1799

To deny the States this right is tyrannical and is an unconstitutional doctrine. In fact our founders believed that if the States did not refuse to submit to unconstitutional use of federal power, the result would be the elimination of state powers, elimination of the rights of the people, and the complete dissolution of the Union and our Constitution. 

“the doctrine which denies to the States the right of protecting their reserved powers, and which would vest in the General Government (it matters not through which department) the right of determining, exclusively and finally, the powers delegated to it, is incompatible with the sovereignty of the States, and of the Constitution itself, considered as the basis of the Federal Union.”  Fort Hill Address, John C. Calhoun July 26, 1831

If the federal government uses a power that it was not delegated, it does so unconstitutionally. The federal government exists solely because of the Constitution.  Therefore any act that is unconstitutional destroys the very legitimacy of the federal government’s actions and therefore has no effect whatsoever.  Since it has no effect, the States are merely declaring that fact, and are therefore not required to submit.

An epidemic of Constitutional ignorance has made it popular in our day to declare “this is the law of the land because the Supreme Court says so,” and since SCOTUS has said “nullification is not valid,” then it is not a proper remedy, some even claim that it is treasonous.  The men who founded the nation found the assertion offensive that the Supreme Court had the ultimate authority to dictate to the States the acts of the federal government.

“The idea that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism- since the discretion of those who administer the government, and not the Constitution would be the measure of their powers.” Thomas Jefferson, Kentucky Resolution 1799 

To assume that the Supreme Court has the final word on what will or will not be implemented throughout the land is to abandon all power of the states, and throw them into complete submission to a federal power. It would be like allowing a criminal to determine his own guilt or innocence.   

If the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution… dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another--by the judiciary as well as by the executive, or the legislature.” James Madison,Virginia Assembly Report of 1800

Even Federalist, Alexander Hamilton made clear that the Constitution is binding upon any branch of the federal government.  To suggest that the creature could overrule its creator was to our founders a complete absurdity. 

"No legislative act, therefore, contrary to the Constitution, can be valid.  To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid." Alexander Hamilton Federalist Paper #78

It is incumbent upon the STATE REPRESENTATIVES to carry out their oath of office, “support and defend the Constitution of the United States” and be the guardians of the liberty of its citizens.  The Governors and Legislatures must draft a Resolution proclaiming the sovereignty of the state and the unconstitutionality of the federal power and asserting the state’s duty to deny said power.  That Resolution must then be transmitted by the Governor to the Senators and Representatives representing the state in Congress. 

Unwilling to shrink from our representative responsibilities… It would be [deceitful] in those entrusted with the GUARDIANSHIP OF THE STATE SOVEREIGNTY, and acting under the solemn obligation of the following oath, — “I do swear that I will support the Constitution of the United States,” — not to warn you of encroachments, which, though clothed with the pretext of necessity, or disguised by arguments of expediency, may yet establish precedents which may ultimately devote a generous and unsuspicious people to all the consequences of usurped power.  Address of the General Assembly to the People of the Commonwealth of Virginia January 23, 1799

When petition fails…when Congress refuses to enforce Separation of Powers and protect the sovereignty of the States…when the Supreme Court joins in the unconstitutional use of power, we cannot admit that revolution is the only solution that remains! Revolution does not save the Constitution, it can only destroy it.  There must be another peaceful resolution; and there is: It is called Nullification. For the federal government or the States to deny this method of constitutional remedy is to say they are resolved to the destruction of the Constitution and the potential of driving its people to revolution.

“…our Constitution is most worthless and tyrannical, if the usurpations of those who administer it, cannot be resisted by any means short of revolution. I have always considered the reserved powers of the States, as the only real check upon the powers of the federal government; and I have always considered it, not only the right, but the imperious duty of the States, so to apply that check, as not to dissolve the Union. And I have never been able to discover any mode of doing this, except by the positive refusal of the States to submit to usurpations…” Judge Able P. Upshur, An Exposition of the Virginia Resolutions of 1798 (No. I)

The acquiescence of the states, under infractions of the federal compact, would either beget a speedy consolidation, by precipitating the state governments into impotency and contempt, or prepare the way for a revolution, by a repetition of these infractions until the people are aroused to appear in the majesty of their strength.  Address of the General Assembly to the People of the Commonwealth of Virginia, January 23, 1799

Therefore, in upholding their oath the States must stand against any legislation that serves to steal power from the state, thus destroying the Constitution.  If the States fail to stand against this tyrannical use of power by the federal government, they will consent to their own destruction, or worse, to revolution.

“Let history be consulted; let the man of experience reflect; nay, let the artificers of monarchy be asked what further materials they can need for building up their favorite system.”  Address of the General Assembly to the People of the Commonwealth of Virginia, 1799

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