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.

The 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.

Incredible 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.

The “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.

Particularly 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.

Many 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.

The 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.

Nullification 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.

The 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.

The 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.”

Even 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.