By Robert E. Hannay
September 20, 2013
This is possibly the most important issue in the history of the United States. The
continuing national drift toward centralized control has reached the
point where the machinery provided by the Founding Fathers for
maintaining a federation of independent states is broken. The
Executive branch - including the permanent bureaucracy that President
Reagan described as a powerful force that tries to sabotage much
executive and Congressional work - combined with both Congress and the
courts ignoring the Constitution, make a joke of the federal political
structure of the United States and the laws provided by the
Constitution. That structure is a federation of independent states that delegated to the federal
government specific limited, enumerated powers - mainly involving
national security, foreign relations and interstate commerce - reserving
all other powers to the states and the people. In a free society the people do not require constitutional authority to act - government does. Critical to understanding the intentions of the founders is the
fact that the states voted separately to ratify the Constitution, not by
a combined vote of all the people.
The three clauses in the Constitution most frequently violated are the welfare, commerce and “necessary and proper” clauses. The welfare clause says, “… to provide for the common Defence and general Welfare of the United States.” Franklin Roosevelt started the welfare-state snowball rolling in 1933 by interpreting the Constitution’s word welfare to mean charitable welfare.
Subsequent administrations and Congresses, seeking to buy votes and
support, have greatly expanded the scam. James Madison and other
founders specifically ruled out that interpretation, but now federal
tyrants claim to be advancing the general welfare when they hand out welfare checks to politically favored groups. By
appointing judges who were willing to change the original meaning and
intent of the Constitution in order to approve the scam, it now has the
color of law and the cancerous welfare state metastasizes.
commerce clause says Congress will have power “to regulate Commerce
with foreign nations, and among the several States, and with the Indian
tribes.” The purpose of the
clause was to establish a free trade zone within the United States and
prevent the states from restricting commerce by tariffs or otherwise. In the 18th century commerce meant only trade or exchange, not all gainful activity; among the several states meant commerce between one state and another, not commerce that might happen to have an effect on another state; regulate meant to make regular – to cause to function in an orderly manner, not to micromanage the economy.
is an over-used word, but some “interstate commerce” lawsuit violations
permitted by the courts are truly incredible. In 1942 the Supreme Court
ruled in Wickard v. Filburn that the federal government could regulate the amount of wheat grown on
an individual’s farm, even though livestock on the same farm consumed
that wheat. Despite the California law approving the medical use of marijuana, the Supreme Court upheld a federal attack on a California man for using marijuana that was grown on his own property and was legally prescribed by his physician.
“necessary and proper” clause of the Constitution gives Congress the
power to “make all laws which shall be necessary and proper in carrying
into Execution the foregoing Powers, and all other Powers vested by the
Constitution in the Government of the United States,
or in a Department or Officer thereof.” A study of the many statements
of the framers and ratifiers to questions regarding that clause and
their assurances of limited powers and limited government leaves no
doubt that the intent was simply to enable the government to carry out
its enumerated powers. James Madison and many others said that clause
grants no supplementary powers.
The Ninth and Tenth Amendments clarified the limited powers granted to the federal government. The Tenth Amendment says, “The powers not delegated to the United States
by the Constitution, nor prohibited to it by the States, are reserved
to the States respectively, or to the people.” It is the guarantee that
the federal government has only those powers granted to it and no
others. During the ratification discussions in the various states there
were many confirmations of that understanding because of great concern
about the preservation of the rights of the states. Several states even
included such wording in their ratifications. Well into the nineteenth
century the same assurances were regularly repeated, including by some
Federalists who were proponents of a strong central government.
since Franklin Roosevelt, the corrosion of the Constitution has
progressed with almost every president and congress. George W. Bush
refused to veto obviously unconstitutional laws for fear he would lose a
vote or anger someone. He chose instead to sign them and let the
Supreme Court decide on their constitutionality, but that left the fox
guarding the henhouse. Several of the Supreme Court justices view the
Constitution as a “living” document and believe their job is not to
enforce the Constitution, as they promised under oath to do, but to
“interpret” (read change) it to suit themselves. These nine politically connected lawyers are appointed for life and answer to no one.
constitutional scholars say there is a conflict of interest in the
government acting as judge and jury considering its own legality,
judging their own actions and legislation. The
Constitution provides only two ways for amending it, but the Supreme
Court invented and uses a third way – just ignoring what the
Constitution says and was meant, changing the meaning of its words and
even in a case like Roe v. Wade, inventing a new legal principle to
justify their approval of a new law. For all practical purposes, the
federal courts have ceased to police the federal government, using that
power irresponsibly. President Obama has invented a fourth way to amend
the Constitution. He simply refuses to enforce laws he doesn’t like and
illegally legislates by issuing executive orders, even when Congress has
refused to pass laws legislation he proposed, like the Dream Act,
legalizing certain illegal aliens.
result is that probably 70 or 80 percent of the laws Congress passes
are unconstitutional, in spite of the Supremacy Clause that states, “The
Constitution and constitutional laws in pursuance thereof shall be the
supreme law of the land.” Aside from the difficult and little-used
procedure of legally amending the Constitution, the only method
available to enforce the Constitution is by nullification – by states
and individuals refusing to recognize and obey unconstitutional laws.
occurs when a state defends its rights against unconstitutional federal
laws and administrative rulings not authorized by the Constitution. It
is based on the principle that a federal law that violates the
Constitution is no law at all and is therefore void and of no effect. It
is up to the states, as parties to the federal compact, to declare the
violation and to refuse to enforce it.
nullification principle is almost as old as the Constitution. It grew
out of protests involving the 1798 Alien and Sedition Acts, passed
during a minor war with the French. The Sedition Act established fines and prison terms for criticizing the government. There were many violent protests, and Thomas Jefferson, then vice-president, felt nullification was a moderate way to defend states’ rights. He said, “To
consider the Judges of the Superior Court as the ultimate Arbiter of
constitutional questions would be a dangerous doctrine which would place
us under the despotism of an oligarchy … in office for life and not
responsible to the Elective control.” Jefferson’s
view was, “Whensoever the general government assumes undelegated
powers, its acts are unauthoritative, void and of no force … each party
has an equal right to judge for itself, as well as infractions as of the
mode and measure of redress.” He continued to endorse the principle of
nullification throughout his life.
Virginia Resolutions of 1798 and the Kentucky Resolutions of 1799
protested the Alien and Sedition Acts and urged the states to invalidate
them, with Kentucky stating, “Nullification of all unauthorized acts is the rightful remedy.”
when nullification fails, it is a useful educational tool; few people
know about the limited powers of the federal government and the ability
of the states and citizens to nullify laws and government actions that
are not authorized by the Constitution. It not only can be used when
governments overstep their lawful authority but also in jury trials.
Some laws are unconstitutional and judges are just fallible lawyers
with personal loyalties, opinions and prejudices. The
consensus of the founding fathers was that juries must judge the law
itself as well as the facts of the case, with jury nullification an
essential defense for liberty. If a juror feels the applicable law is
unconstitutional or the judge’s rulings and instructions are wrong,
jurors can and do invoke nullification and can reach a verdict based on
their own analyses and consciences.
Gradually the public and the states have come not only to accept central authority and control, but to look to Washington
to solve their problems. Federal control continues to increase when the
people and the states allow the president and Congress to wage
unnecessary and unlawful wars, interfere in a decreasingly free-market
economy, and seek votes by “helping” people. Now instead of the states
protesting the federal usurpation of states’ rights, they mainly
squabble over who gets the biggest share of what is left of the loot
extracted by the federal government from local taxpayers.
Several states have passed ObamaCare nullification legislation. It remains to be seen what Obama tries to do to those states. It is difficult politically for the federal government to punish states that revolt, but for some reason rebellions are rare. The public and the states are not mere puppets controlled by politicians, bureaucrats, lawyers, and unreasonable legislation and case law, but they usually perform like puppets. When appropriate, states and citizens should object, defund, and disobey.