The Supremacy Clause and Proper Constitutional Bounds

Critics are quick to point out that the doctrine of nullification has never been legally upheld. In fact, the Supreme Court expressly rejected it – in Ableman v. Booth, 1959, and Cooper v. Aaron, 1958.

They say that the courts have spoken on the subject, and under the Supremacy Clause, federal law is superior to state law. Further, they argue that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, the critics conclude, that the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws but rather, are duty-bound to obey them.

The fatal flaw in their arguments, however, is that they believe that the judiciary, a branch of the same federal government that tends to overstep their constitutional bounds, is somehow above the law and not subject to the remedy of nullification as the other branches are.

Another fatal flaw in their argument is that somehow, the Supremacy Clause is a rubber stamp that labels every federal law, every federal court decision, and every federal action “supreme.” They, and especially the justices of the Supreme Court, refer to the Supremacy Clause as if it were the Midas Touch – a magical power that turns EVERYTHING the federal government does, including by all three branches, to gold. Nothing is farther than the truth. The Supremacy Clause states simply: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; …shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…”

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Why Nullification?

The TRUTH about nullification is that it is legitimate, and it is the only way to effect a meaningful check on the federal government when the executive, legislative, and judicial branches unite on an incorrect interpretation of the Constitution, and threaten the independence of the states and the reserved rights of the People.

The federal government CANNOT be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to judge the extent of its own powers, as Madison and Jefferson warned in 1798-99, it will continue to grow – regardless of elections, the separation of powers, and other limits on government power. Nullification has always been available to push the government back within the boundaries of the Constitution, but for too long, those hostile to the Constitution have insinuated – FALSELY – that the doctrine was the reason for the Civil War and for segregation, thereby trying to use shame to invalidate it.

We should take a cue from Patrick Henry. While others were celebrating the Constitution and rejoicing that a more effective compact was created, Henry urged them to cool their heads and take a step back  – to look carefully at the document they were asked to ratify.  It was his opinion that the government created by the Constitution would tend to concentrate power, strip power from the states, and become no better than England’s monarchy (“it squints toward monarchy”).  He urged Virginia to reject the Constitution. He reminded the delegates that trade, power, and security should not be the first concerns on their mind.  He said the proper inquiry should be “how your liberties can be better secured, for liberty ought to be the direct end of your government.”

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The Misrepresentation of Nullification with Respect to Slavery

One of the biggest criticisms of nullification is that it was asserted for the purpose of perpetuating slavery. This is a complete misrepresentation of history. The record is absolutely clear on this issue. Frustration of the federal Fugitive Slave Act was accomplished by nullification efforts all over the North, and because of the success of…

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Null and Void from the Start

Nullification is the doctrine holding that actions of the federal government that are passed, imposed, or exercised in excess or abuse of the express authority granted in the Constitution are not enforceable. If there is no proper foundation for the action it is null and void, and a state has the right, in fact the duty, to refuse to enforce it on its people. Nullification is an essential principle to ensure that the People are insulated from federal tyranny.

Nullification is a legal theory rooted firmly in constitutional history and based on the very limitations articulated in the US Constitution, specifically the Tenth Amendment and Article VI, Section 2 (“Supremacy Clause”). It is based on the federal nature of our government (separation of powers; “dual and competing sovereigns”), on the Supremacy Clause (only those laws made “in pursuance to the Constitution” are supreme and therefore trump state law), and most strongly, on the compact nature of the Constitution (the states formed the Constitution as a compact, agreeing to delegate some of their sovereign power – certain specified powers – to the federal government and reserving all other powers to themselves. Each state, as a party to the compact, has a “right to judge for itself” the extent of the federal government’s powers).  The compact – the social compact – that the states signed in forming the Union in 1789, is similar to contract law. Contracts, as we all know, outline the obligations and benefits to each of the signing parties. The parties are likewise bound by the express language of the contract. We understand this theory and this issue of contract construction as we all have signed contracts. If one party attempts to change the terms or exceed authority under the contract, the other party can either chose to ignore the perverted exercise of contract power or can break the contract altogether.

The fundamental basis for government and law in this country, as in most societies, is the concept of the social compact (or social contract). Social compact is an extension of Natural Law (upon which our Declaration is based) which states that human beings begin as individuals in a state of nature and then organize into societies for mutual benefit. They create a society by establishing a contract whereby they agree to live together in harmony for their mutual benefit, after which they are said to live in a state of society. This contract involves the retaining of certain natural rights, an acceptance of restrictions of certain liberties, the assumption of certain duties, and the pooling of certain powers to be exercised collectively. James Madison confirmed the nature of the US Constitution as a social compact in Federalist No. 39.

The key features of a social compact are: (i) retention of natural rights; (ii) common defense of those rights; and (iii) limitation of government power.

Now, it is true that the compact assures that the Constitution and the laws made in pursuance to it (Article VI) shall be valued as the supreme law of the land, but the converse is equally true. All power not expressly granted is reserved by the States and on those objects, state law is supreme law. This is our system of dual sovereignty. That is the brilliant design feature of our American government system which our Founders believed would ensure the protection of our God-given rights. But unfortunately, our Founders thought the government could be trusted to respect its boundaries, to protect that “precious jewel” that is liberty. They believed that if the branches of government were “advised” that their particular actions were unconstitutional, they would quickly remedy the situation and undo what they had done.

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Nullification is a Constitutional Principle

There is no easier way for tyranny to take hold than for a People to remain silent when they know, or should know, what their rights are. There is no easier way for a government to usurp the natural rights of a People to govern themselves than for them to stand by and let that government legislate when it has no authority to do so.

The early colonists certainly didn’t miss an opportunity to stand up for their rights. In fact, the Sons of Liberty formed (much like today’s Tea Party and Tenth Amendment Center) to point out where Britain was violating their rights and to help organize opposition and protest. Samuel Adams, the leader of the Sons of Liberty in Boston, wrote the following in 1769 with these words:

DEARLY BELOVED,

REVOLVING time hath brought about another anniversary of the repeal of the odious Stamp Act,—an act framed to divest us of our liberties and to bring us to slavery, poverty, and misery. The resolute stand made by the Sons of Liberty against the detestable policy had more effect in bringing on the repeal than any conviction in the Parliament of Great Britain of the injustice and iniquity of the act . It was repealed from principles of convenience to Old England, and accompanied with a declaration of their right to tax us; and since, the same Parliament have passed acts which, if obeyed in the Colonies, will be equally fatal. Although the people of Great Britain be only fellow-subjects, they have of late assumed a power to compel us to buy at their market such things as we want of European produce and manufacture; and, at the same time, have taxed many of the articles for the express purpose of a revenue; and, for the collection of the duties, have sent fleets, armies, commissioners, guard acostas, judges of admiralty, and a host of petty officers, whose insolence and rapacity are become intolerable. Our cities are garrisoned; the peace and order which heretofore dignified our streets are exchanged for the horrid blasphemies and outrages of soldiers; our trade is obstructed ; our vessels and cargoes, the effects of industry, violently seized; and, in a word, every species of injustice that a wicked and debauched Ministry could invent is now practiced against the most sober, industrious, and loyal people that ever lived in society. The joint supplications of all the Colonies have been rejected; and letters and mandates, in terms of the highest affront and indignity, have been transmitted from little and insignificant servants of the Crown to his Majesty’s grand and august sovereignties in America.

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Where are Today’s Sons of Liberty?

We talk a lot today about how the Constitution no longer means what it used to and it no longer protects individual freedom and liberty as it used to. We say this because a government of limited and defined powers has steadily and without apology become a government of broad and undefined powers.  When a state should happen to assert its sovereignty and challenge the usurpation of power, the federal government issues a letter threatening to take them to court. The government knows that what the Constitution won’t allow it to do, the courts will.

But the situation is far more serious than what we thought.  Yes, our Constitution is and has been under attack. And yes, the relationship between the individual and the government has been fundamentally altered. But the document that perhaps may be even more significant to us as Americans, the Declaration of Independence, is also under attack. The attack, if we want to be intellectually honest, started with the man the government touts as the greatest American president Abraham Lincoln.

Just as the Constitution was fundamentally transformed as the American people slept and as they became virtual strangers to their own history and heritage, the Declaration has been eroded because of the same reason.

John Adams once said: “A constitution of government once changed from freedom, can never be restored. Liberty, once lost, is lost forever.”  The American people don’t know how close they are to losing the very gifts they have taken for granted for so long.  We here today will enjoy the last remnants of freedom, but through our actions, our neglect, our spite, and our ignorance we may condemn our children and grandchildren to repurchase it, perhaps with their lives. It may be too late.

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What It Means to Be Sovereign

Declaration of Independence - with Jefferson statueGovernment in the United States requires the understanding of three terms: Self-government, sovereignty, and social compact.

Sovereignty is the inherent and independent right to do all that is necessary to govern oneself. In the United States, the People are sovereign. In fact, only the individual is truly sovereign, because only the people, and not government, have inherent rights to life, liberty, and property, along with the right to protect and preserve it.

In the United States, we enjoy self-government; that is, government originates from the people, for the people – “of the people, by the people, and for the people.” Government arises out of social compact. In other words, because man is a social creature, he forms together into communities. And in order that communities run smoothly and common services be provided to protect everyone’s rights and property, governments are instituted. And so, individuals delegate some of their sovereign power of self-defense and self-preservation to a government. That is why the bulk of government is always supposed to be closest to the individual, where it is most responsible and most accountable. Our rights and liberties are most protected when people have the frequent opportunity to see their elected officials and look them in the eye, and when those officials see a personal story behind acts of legislation, etc.

This is exactly what our Declaration of Independence tells us about our individual sovereignty. In the first paragraph, we are told that our sovereignty is based on Natural Law and God’s Law – “to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” The only rightful power our government has is the power that the People – by the consent of the governed and according to the precise language and intent of our Constitution – have temporarily delegated to it. In that grant of power, in a system based on the Sovereignty of the Individual, there is always a mechanism to take that power back. That is why the Declaration explicitly states that the People have the right to “alter or abolish” their government (when it become destructive of its aims). In fact, that right is so important and so fundamental, it is listed with the other inherent rights that individuals possess. In other words, what the Declaration is saying is that the People of the “united States” have the right to reclaim the sovereign power that they temporarily delegated to that government to govern and protect their liberties.

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North Carolina to Make Decision on Obamacare Healthcare Exchange

   

Under the mandates of Obamacare, states are required to implement healthcare exchanges, which are online health insurance shopping centers for state residents and small businesses.  This is where they will sign up for a healthcare plan, in accordance with the dictates of federal healthcare law.  They can declare one of 3 options for these exchanges –   a pure federal plan (HHS sets it up), a state-federal plan, or pure state plan.  Health and Human Services (HHS) Secretary, Kathleen Sibelius, has set deadlines for each of the options.  For example, the deadline for states who want to run their own exchanges (pure state plan) was Friday, November 16 (but extended by Sibelius to December 14).  For those states opting for the state-federal plan, the deadline is February 15, 2013.

Our NC State Legislature, as I understand it, had considered the state option and in fact, it passed the House.  But it failed to pass the Senate after an independent report looking into the feasibility of the option concluded that it could not be done.  There would not be enough time to set it up and get it running here in NC.  And that’s where things stood.  It was anticipated that the healthcare bill would be repealed with a Romney-Ryan victory and we wouldn’t have to be concerned with its implementation.  But that wasn’t what was written in the stars.  The re-election of President Obama has put Obamacare back at center stage.  And so, despite a deadline of February 15, Governor Beverly Perdue went ahead on Thursday, November 15 and sent a letter to Sec. Sibelius declaring that our state of North Carolina will opt for the hybrid state-federal healthcare exchange plan.  She claims the new state legislature will have the ability to stick with that option or decide that they want a pure federal plan.  What does newly-elected Governor Pat McCrory think?   (see News & Observer article below)

The states are faced with a dilemma, including North Carolina: Whether to acquiesce and accept that this bad bill and unconstitutional Supreme Court decision is “the law of the land”, or, to keep protesting and challenging the government’s authority to force its will on the individual states even when the area it wishes to legislate is one reserved to the states?   And so, that is being played out at the state level, through the opting out of the healthcare exchanges and the consideration of nullification bills and state constitutional amendments.  On November 6th, the people of 3 states voted to add an amendment to their state constitution nullifying the federal healthcare Individual Mandate –  Montana, Wyoming, and Alabama.  Florida narrowly failed to pass its Obamacare nullification amendment – by only 1% of the vote.  [See:  http://www.ncsl.org/issues-research/health/state-laws-and-actions-challenging-ppaca.aspx]

So far, 17 states have opted out of the state healthcare exchanges mandated by Obamacare –  Alabama, Arkansas, Georgia, Indiana, Iowa, Kansas, Louisiana, Maine, Missouri, Nevada, North Dakota, Ohio, Texas (of course!!), South Carolina, Virginia, Wisconsin, and Wyoming.

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Our Choice: Stand up or Lay Down Quietly

The Constitution was established to provide limited centralized government. It was established as an “agent” or servant of the States. It was to serve the common interests of the States so that they can act like a “Union” of states and not 13 independent states. But the servant became the master — not by force, but by stealth. It happened over many years as elected officials lost sight of the goals of the Constitution an un-engaged citizenry forgot that it was THEIR document. They forgot the pivotal role that the Constitution plays in securing their fundamental rights.

George Washington warned: “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.” He was trying to warn us of the danger of allowing the government to extend beyond its constitutional boundaries.

In fact, our Founding Fathers and those who ratified the Constitution in their state conventions, gave us plenty of warning as to the dangers of a centralized government.

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