When Two Paths of Nullification Collide

Say the word jury nullification and people say they can’t do it. Say state nullification and people will say it is a no-go. The reason for this is that the fear that most people have of the government will punish them prevents them from doing this on their own.

It would be nice if we lived in a world where people regularly had the courage to defy their government when it is acting unjustly or unconstitutionally but we live in the real world where such courage is rare. Those who believe in these concepts have to accept the idea that people are not going to risk their lives, liberty, and property when attempting to disobey the government. There has to be a legal path for these things in order for the average person to use them.


Jeffersonian Equality

It seems the word equality is used so many times that seems to shape the very debate of our modern political thinking. The writer of this article (http://www.cnn.com/2011/OPINION/07/08/mills.debt.dream/index.html?iref=allsearch), Nicolaus Mill, wants to leave the impression that America was founded on the idea of establishing a egalitarian society but that is false. Its easy to take to take the same word and use one its synonyms in order to leave the impression you want on a reader and the impression this article leaves is that the founders were trying to establish some kind of egalitarian society. The manor in how this one word is used seems to mean so much in our modern political debate that it seems to alter the entire debate itself. A good example is how conservatives try to twist egalitarian equality around in order to destroy its socialist implications but if they actually understood how it was used originally in the Declaration of Independence we would not have to do that.

The actual title of this article is correct in that America was not necessarily founded on the idea of wealth accumulation but on equality but this article’s use of the word equality was not how it was used in the Declaration of Independence. In order to understand the original meaning of the word equality we have to understand the historical influences that shaped the thinking of Thomas Jefferson.


The Congress shall have power to enforce.

This dreaded clause was placed into the fourteenth amendment which basically destroys a states ability to interfere with the fourteenth amendment since any state law that attempts to do so will simply be overridden by a federal law that was made in pursuance of that particular power. The same clause also exist for amendments thirteen, fourteen, fifteen, eighteen, nineteen, twenty-three, twenty-four, and twenty-six which makes it impossible for states to interfere or legitimately enforce those particular amendments because any federal law that does so would be superior to a state law that attempts to do the same thing. This means that states can’t enforce these amendments in any meaningful way since any federal law that does so would override any state law made with the same power and this may seem like an argument against state nullification but it actually provides the strongest justification for state nullification.

When the people who wrote those amendments gave that power to the federal government they established that the power to enforce the constitution legislatively does exist. It can not be denied that such a power exists because it is plainly written into it so the only question left is who has that power. Is it the states or the federal government? It is clearly given to the federal government for those amendments listed above but where it was not delegated to the federal government it is squarely reserved to the states. The federal government only has the power to enforce those particular amendments but where that power was not delegated to the federal government and/or where it is not prohibited by the constitution then that power rightfully belongs to the states. The power to enforce the constitution has not been denied to the states by the constitution and the federal government only has that power for a few sections of the constitution which means that under the tenth amendment states have the legal ability to enforce the constitution where it has not been granted to the federal government.


What do We Mean by State’s Rights?

Governor Perry seems to have taken two completely contradictory positions by saying he is OK with the mighty state of New York allowing gay marriage but also coming out and saying he would support a constitutional amendment banning gay marriage (http://www.huffingtonpost.com/2011/07/30/rick-perry-gay-marriage_n_914060.html). It would seem that such an amendment would would interfere with a state’s ability to allow gay marriage but this is very much in line with the concept of state’s rights.

In order to understand the concept of state’s rights we must acknowledge that each state has every natural power associated with a sovereign nation except for the ones specifically denied to them by the constitution such as the power to go to war or print money. These things are denied to the states by the constitution itself and it is the only legal document that has any power to subtract any already existing powers from the states. It is the common law of the states and each state is free to do everything that isn’t denied to them by the constitution. You can say they have certain immunities under the law that no other code of law can interfere with (aka federal statutes). This may seem contradictory to those who believe that federal law is the supreme law of the land but this puts the constitution directly above the states and the only legal authority of the states since it is the constitution is the supreme law of the land. This removes the federal government from the chain of command.


Constitutional Sentence Frags

There is one trick that the progressive left likes to use which is to fragmentize the constitution in order to get the meaning that they want. A good example of this is the commerce clause where they use the narrow phrase ‘regulate commerce’ to suggest that congress has the power to regulate commercial activities.

They fail to read the entire sentence which suggest that congress only has the power to regulate commerce between states, Indian tribes, and foreign nations which sounds more like the basic power to control the flow of goods across a border. They hope that the public will not read the document in its entirety and use a few sentence fragments to get the meaning they want.

Recently, in this article it has been reported that Obama is going to ignore the debt cap and is claiming another sentence fragment in the fourteenth amendment. That fragment is “the validity of the public debt of the United States, authorized by law”. When you take that one sentence fragment as it is it sounds like all public debts are valid but if you look at the entire sentence “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. ” it says something much different.


The Basis for Judicial Review

The tenth amendment does not conflict with the supremacy clause but simply duplicates it. It says that states and the people have all the powers that are not prohibited by the constitution itself which sets up the constitution as the supreme law of the land. Any law passed by the federal government is invalid by default since it can’t take away any power from the people or the states since the tenth amendment states that only the constitution can prohibit those particular powers and if the ‘powers not delegated’ didn’t exist every federal law would be unconstitutional.

The tenth allows for one exception to this rule which is powers delegated to the federal government since the constitutional supremacy that the tenth amendment confirms only exist for powers not delegated to the federal government. Any law passed using powers not delegated to the federal government is superseded by the constitution’s supreme authority since the tenth amendment only refers powers not delegated to the federal government.

This also establishes a basis for why laws are unconstitutional since laws made by the powers of the federal government can’t be invalidated by the constitution’s supreme authority because laws made with powers not given to it are second to the constitution’s authority. The tenth amendment then says that those particular things that those laws attempt to prohibit that have been made outside of the property delegated powers of the federal government can only be prohibited by the constitution itself.


Tentherism in a Nutshell

The minute you tell someone that you are a tenther, they assume that you are a conservative, because the Tenth Amendment has a lot to do with state’s rights. This much is true – tenthers are conservatives. But a different kind of conservative.

It is the kind of conservative that may believe in laws that regulate our behavior, but really doesn’t care what laws people implement in other states. A tenther assumes that I can ban drugs in my own state, but California is free to do otherwise. It seems to resemble libertarianism, but even some libertarians are OK with allowing a single government to rule over the entire society. And because of this they attempt to implement their ideas on that level.

A tenther can be a communist, a liberal, a conservative, a social conservative, or a libertarian. A tenther simply embraces the idea that everyone shouldn’t live under the same political authority. This allows different political positions to exist under the banner of tentherism, as long as each ideological position adheres to the idea that political authority is limited to a small geographic area within the larger society.

Each one of these positions will naturally dissolve in favor of individualism, because the minute you realize you are powerless over the entire whole of society, you stop attempting to use the political authority to make other people conform to your will. It becomes pointless to change the world through political power if that political power doesn’t exist over the entire world itself.


Make States the Final Decider of the Constitution a Reality

A recent court decision has ruled that the president can use money to fund stem cell research which is something I find blatantly unconstitutional because it is congress that decides how to spend the money. It says that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” which means that every dollar spent is spent according to the law and not according to Obama’s will which is what the court ruled. The court has seem to forgotten (and quite conveniently) that it is congress that decides how money is spent and not any other branch of the government.

It may seems that the only thing that we can do is pray that the courts come to their senses but if the people in congress actually read the constitution they would realize that they have a special power in article III Section 2 that allows them to create exceptions for what cases the federal courts can preside over. It states “with such Exceptions, and under such Regulations as the Congress shall make” which gives congress the ability narrow the range of cases of which then can hear. This was done to make sure that the federal courts can’t re-invent the law as they see fit since congress can remove their power to preside over what they establish as an exception. Its meant as a check on the federal court system which reminds them that the law means what congress says it means. This may fly in the face of proponents of living constitution theory but the courts are not empowered to interpret the law in any manor that is inconsistent with the intended meaning of the legislators that crafted it intended.