Liberty and Independence: Now and Forever, One and Inseparable.

cross-posted from the Virginia Tenth Amendment Center

The following is modified from the text of a speech in which I competed in the National Christian Forensics and Communications Association and Stoa Speech and Debate last Spring during my senior year of high school.  Though you are likely familiar with the subject matter, it is my self introduction as a rising young Tenther.

“Possessing a chosen country, with room enough for our descendants to the thousandth and thousandth generation;… –with all these blessings, what more is necessary to make us a happy and a prosperous people? Still one thing more, fellow-citizens–a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.”

The Words of Mr. Thomas Jefferson upon his inauguration as President of the United States

I hardly need to prove that our modern leaders have strayed from such doctrines of government and our nation from such standards of policy.  Our country is faced with great problems but before I get too far ahead of myself, let’s lay out a roadmap for what we will be looking at.  The central thesis that I want to communicate today is simple: decentralization of power.  The founding fathers such as Thomas Jefferson lived in and strove to maintain a system of government in which local authorities dominated the central authorities and the people could feasibly and reliably affect the local authorities, resulting in a controlled and limited government.  Now we live in a nation dominated by centralized power and the result is legalized abortion, intrusions into the autonomy of the family, nationalized healthcare and the list goes on.  Specifically, I will address four main points under this general theme:

1   The problem confronting our efforts for liberty,
2   My proposed solution by which we may return to decentralized power,
3   Answers to the many common objections to my solution and
4   How we can become involved in restoring freedom to America.

Beginning with my first point: there is a war raging for control of the future of our country that presses for the final trenches of liberty’s foothold.  We must reverse the fall of our republic or suffer its destruction.  Long have the faithful soldiers of liberty and constitutional government striven by diverse means to resist the onslaught of tyranny and usurpation, noble strivings whose legacy I do admire.  These efforts, however, have yet to accomplish a turning of the tides of this conflict.  Has abortion been banned?  Have we returned to sound monetary policy and a free economy?  Are our borders secured?  Have foreign laws been rejected within America?  Do our states and Union acknowledge God as the Author of law and liberty? Hitherto we have striven to elect members of Congress and national executives who will advance the cause of liberty. 

Though necessary, such labors have borne fruit merely to elect on many occasions the lesser of two evils who will bow to the party line.  We have sought to halt the despotism of our lawmakers by appealing to the courts but are not the courts more corrupt than the legislatures?  As insulated executives appoint activist lawyers from the untouchable elites of progressive law schools, shall we expect that by some miracle, unaccountable justices without character or consistency should bring true relief in the end?  Our efforts are noble but they must today find a more effective outlet.

There is a true hope of liberty’s return if we again embrace the American doctrine of decentralization of power.  By this I refer, mind you, not merely to Tenth Amendment litigation before federal judiciaries.  True, our federal government was divided into competing branches in order to inhibit offenses by other branches but these checks and balances have been made irrelevant by lack of use because those branches have linked arms in the common cause of statism.  We will work to salvage the national system but to expect at this point that the federal government will regulate itself is a losing strategy.

Now we have seen that our current efforts for liberty need a strategic tune-up, which leads to our second point what specific solution do I offer in response to these needs of our country.  The line of policy for which I am calling has been employed in numerous instances for good and ill (having been, like all forms of policy, misused, but such abuses are arguments for its careful usage, not its abolition) but this now proves the rightful remedy of our grievances.  Nullification.  This is simply a matter of states declaring, by due legislative process, that particular actions of the federal government are unconstitutional, null and not to be enforced within their jurisdiction, drawing a line in the sand regardless of federal say-so.

So we see that we have problems and I offer nullification as the solution.  Many good men and women, however, suggest that my solution is not the proper manner in which to respond to tyranny.  My third point addresses the objections offered against nullification.

Some people argue that nullification is unconstitutional due to the Supremacy Clause of the United States Constitution; which establishes the Supremacy of federal laws over state laws (U.S. Constitution, Article VI, Section 4).  First, let me point out that the Supremacy Clause refers only to those laws which are made in pursuance of the Constitution, rendering unconstitutional laws without such protection.  Nullification is neither treason nor anarchy but that such policy is as rightful as it is necessary is the conclusion demanded by all principles of federalism and constitutionalism.  Our Union was formed from the ground, up by the voluntary joining of states under the Articles of Association in 1774, the Articles of Confederation and Perpetual Union in 1781 and the Constitution in 1788.  In all cases arising during this history, however, it is always manifest that the Union is the creature of the collective states, that its central powers exist by their commission and for that central authority to overstep its proper jurisdiction is without legitimacy.

The states are parties to a contract called the Constitution.  This contract commissions an agent, the federal government, to perform certain limited tasks which the states cannot well do individually.  But as in all contracts, the agent is bound by the words thereof and the parties which established it preside as the final judges of its interpretation.  Our charters, laws and precedents all ultimately testify to this maxim that a law repugnant to the Constitution is void.  Nullification does not, in the strict sense, nullify anything.  Unconstitutional actions are just paper being enforced by federal marshals without valid authority to which nullification demands a stop.

Another objection is that I suggest usurpation of the proper role of Judicial Review, that the Supreme Court is the sole arbiter of constitutional interpretation.  If we are to understand Judicial Review, that is the power of the courts to overturn acts of Congress, we must understand it in terms of the decision in which the precedent of Judicial Review was set for the first time.  It was in the case of Marbury v. Madison in 1803 that Chief Justice John Marshall rightly established the precedent of Judicial Review, stating that the court would disregard acts of Congress which overstepped the Constitution.  The Constitution gives no power for the courts to overrule Congress nor did Marshall ever claim the power to overrule Congress but only said that the laws before him (the Constitution and the act of Congress in question) contradicted each other and therefore he would rule according to the higher law.  Prominent among Marshall’s arguments was his oath to uphold the Constitution.  But are not all state legislators sworn to uphold the Constitution?  All governmental agents are bound to uphold the Constitution in their own capacity.  Judicial Review is one application of the principle of the nullity of unconstitutional acts and nullification is another.

Now, I am applying this principle in a way you may not be familiar with and some think that such application of these principles violates the intentions of the architects of our republic.  I answer: look to the example of Jefferson, author of the Declaration of Independence and Madison, Father of our Constitution, whose joint-authorship of the Kentucky and Virginia Resolutions of 1798 and ’99 declared the very solution I have applied to America today. These resolutions were ratified by the legislatures of those states in open nullification of the unconstitutional Sedition Act, which became unenforceable in those states.  Look also to Hamilton, centrist and statist among the founders, political opposite of Jefferson, proposing the near abolition of state borders, who nonetheless agreed that states must submit to federal actions regardless of their own interests (in the Federalist #16) quote:

“except in the case of tyrannical exercise of the federal authority.”

(Hamilton) American history abounds with such examples.

Many bring up the fact that nullification is known for its usage in the context of racism and segregation.  This is based on partial truth out of context.  In liberal history books where FDR is credited with saving the economy and Woodrow Wilson is lauded for his crusade for world peace, would you expect impartiality on the topic of nullification?  Let’s talk about some examples.  While Vice President John Calhoun did urge nullification to preserve slavery, his equally pro-slavery President Andrew Jackson argued against nullification, hoping to maintain good relations with the federal government and control the Supreme Court.  Nullification was not the pro-slavery motto but one of multiple strategies employed to preserve it.  Meanwhile, the anti-slavery Republican party, including Abraham Lincoln, declared a refusal to acknowledge the Dred Scott Supreme Court Decision which ruled that blacks were property rather than persons under the law.  As a result, the Dred Scott Decision could not be enforced in the North.  Likewise, a local southern court nullified the Supreme Court ruling by freeing Dred Scott contrary to federal wishes.  Also recall how numerous northern states nullified federal fugitive slave laws and allowed escaping slaves to seek safety in the North.

Lastly, some believe nullification is unpatriotic because of its defiance against national power.  Friends, I love my country.  What I despise is the unchecked government that is destroying it.  If you still deem this principle repugnant to the American spirit of liberty and union, (Webster) recall how liberty was won: not by petitions to British royal ministers or lobbying of Parliament but by the firm refusal to submit to usurpation, refusal at the colonial level.

My fourth and final point: how can we then be involved?  Of the many books and organizations I would love to recommend, for sake of time I will start with the Tenth Amendment Center (at tenthamendmentcenter.com).  It is the national think-tank and action center which holds the position of undisputed academic authority on the subject of state nullification where you can find petition drives, free educational material, recommended reading and opportunities of all sorts to get involved.  Also worth note are libertydefenseleague.com, statenullification.com and werefuse.com, as well as the state and local organizations you can find links to on those sites.

This organization is named for the Tenth Amendment to our federal Constitution, which reads:

“Any powers not delegated to the United States by this Constitution nor prohibited by it to the States are reserved to the States respectively or to the People.”

Let such states then, as would see freedom and justice live on devote themselves to peaceful refusal to submit to unconstitutionality.  Let us devote ourselves to impacting their politics to ensure that they do so and let us see that tyranny trembles at defiance it cannot subdue.  As our hearts burn with righteous indignation and zeal, as we witness the collapse of the vast network of national despotism and as we drink in the full assurance that our posterity shall live in freedom, then remember that the victory was not won by appeals to tyrants but by the defiance of patriots, by the battle cry of Liberty and Independence; Now and Forever and One and Inseparable.