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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…
Nullification, the Duty and Right of the States-Pt. 2
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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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