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Nullification in a Nutshell

By on February 19, 2010 in Constitution, Nullification

nutshellThe “Principles of 98,” as they came to be known, are rarely discussed in modern history lectures even though these are integral to understanding how our federal Constitution was intended to function. These are the principles of state interposition or nullification that assert that if the federal government fails to check itself through one of its three branches, then it would be up to the states to rein in the feds.

The main basis for the theory is that the states created the national government when they joined the compact and not the other way around. The states therefore retained the power to judge for themselves the constitutionality of federal laws and reserved the right to refuse to enforce them if they went beyond their constitutionally delegated powers. As a matter of fact, nullification was used even before the implementation of the Constitution when the Colonists nullified laws made by the British Monarchy. The concept of a state nullifying a federal law simply means that a state refuses to comply with the law or permit its enforcement within state boundaries.

The man widely regarded as the “Father of the Constitution,” James Madison, described just how a federal system would work in his essay Federalist No. 51. Madison, encouraging his fellow countrymen to ratify the newly drafted Constitution, described a system of horizontal as well as vertical checks and balances between the federal and state governments — a system known as federalism. “Hence, a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Madison, joined by Thomas Jefferson, would later go on to expand upon this in the famous Kentucky and Virginia Resolutions of 1798. The federal government had recently passed the blatantly unconstitutional and shameful Alien and Sedition Acts to silence and intimidate political enemies. Those despicable acts were instituted by advocates of unwritten constitutional power and a more robust central government. Both Jefferson and Madison argued that the states constitutionally had the right to refuse not only to comply with such unconstitutional actions of the federal government, but also to actively prevent the feds from enforcing them within their state boundaries.

These visionaries and their resolutions gave a voice to a peaceful revolution of constitutional principles that would govern this great nation for years to come. Many states have in fact utilized state nullification to check the federal government throughout the history of our Republic. From the Fugitive Slave Act to unpopular tariffs, states did indeed nullify federal laws they found to be unconstitutional.

Nullification has started to be mentioned in the news, as states have once more started to utilize the practice to resist federal overreaching. Many states have either passed or proposed legislation or amendments to their state constitutions that nullify federal laws in the areas of firearms, medical marijuana, and healthcare, to name just a few.

Cross-Posted from The New American

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Who are the dangerous conspiracy theorists?

By on February 16, 2010 in Foreign Policy, Military, Politicians

neoconsThe recent Medina debacle on Glenn Beck’s overrated show highlights the obvious hypocrisy of the Beltway Right-wing when it comes to conspiracy theories. Conspiracy theories that question government action are shunned while ones that endorse all-out war are to be embraced and repeated.

I have one simple question though for anyone free-thinking enough not to immediately follow whatever the voice on the radio tells them. What “conspiracy theorists” are more dangerous and deserve to be shunned by public opinion?

The ones trumpeted by people like Alex Jones whose goal is to have the 9/11 attack investigations to be reopened?

Or the ones feverishly hawked by the likes of Sarah Palin, Bill O’Reilly, Newt Gingrich, Sean Hannity and Rush Limbaugh that call for the American military to begin attacking Iran? The aforementioned talking heads of the mainstream conservative movement are the same voices who were mindless, unquestioning cheerleaders for Bush’s tragic, costly and unconstitutional war with Iraq (with the exception of Palin who was quiet on Iraq until shortly after McCain picked her for his running mate).

These people, who literally have blood on their hands, are now telling us that we should look with disgust on anyone who questions the official account of 9/11?

I don’t know about you but I strongly believe the guy wearing a baseball cap that says “inside job” isn’t a threat to anyone. On the other hand, the self-appointed leaders of the conservative movement, who have already gotten countless people killed and seriously maimed with their “conspiracy theories” while screeching for more war are the dangerous ones.

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Original Intent on DVD

By on December 8, 2009 in Constitution, Originalism

original-intentHere’s an excerpt from a great interview from the Daily Bell with James Jaeger, the award winning director of Original Intent (which makes a great Christmas gift!).

Daily Bell: Aren’t those ideals of liberty that you describe, the ones the US was founded on?

Jaeger: The U.S. Constitution has adopted certain traditional values to promote this idea, values that were found in the Christian Bible, and stipulated a government that is supposed to serve We the People and protect liberties. Not provide all manner of dialectic materialist needs and wants. Unfortunately, due to FIAT money and a host of other failures to follow the US Constitution, we now have a government that’s attempting to do just this, and in doing such, go the way of all other oligarchies down through time. This can be reversed if certain provisions of the Constitution are better-applied, such as Article III, Section 2 and the Second Amendment and other provisions are reinstated, such as the 17th Amendment and the original Commerce Clause. ORIGINAL INTENT goes into these matters.

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The Spineless Supreme Court

By on December 3, 2009 in Constitution, Law

Tenthers are constantly reminded by worshipers of the Judicial Supremacists on the highest Court that we’re re-arguing areas that were settled long ago by those black-robed deities.

Yet Tenthers reject the notion that the federal Court can rewrite the Constitution for the entire nation if 5 politically connected lawyers agree. Besides the fact that this wasn’t how the Framers intended our constitutional republic to operate, it also is a sure loser for those interested in preserving individual rights and limiting the growth of government.

Somehow the Court always seems to decide with federal power over state power, unfairly stacking the deck in the favor of the central government. And when it comes to issues that matter, like actually restraining the feds from Empire-building abroad, the Court wusses out.

A perfect example of the spinelessness of the Supreme Court is the “political question doctrine.” Political questions are controversies which the Court deems to be too tricky for them to handle. Basically it’s a way for them to arbitrarily dodge involving themselves in issues which could actually restrain federal power.

The Court has ruled that constitutional challenges to a President’s conduct of foreign policy, (like perhaps  Obama tripling U.S. forces in Afghanistan), are political questions and therefore nonjusticiable. Once again, it seems like the Court excuses itself from an area where it could actually be an influence for liberty and freedom.

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Unconstitutional Tribunals

By on November 30, 2009 in Constitution, Terrorism

Judge Napolitano does an excellent job in this op-ed explaining the numerous ways in which using military tribunals on foreign soil to try alleged terrorists violates the Constitution.

The casual use of the word “war” has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war — and thus trigger the panoply of the government’s military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.

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Neocons vs. The Constitution

By on November 30, 2009 in Constitution, The Opposition

As much as it seems like progressives hate the Constitution, we must not forget that it is the neocons – warmongering statists pretending to be conservatives – who continue to be the biggest threat to the U.S. Constitution. After all, if it weren’t for the neocons, Obama most likely wouldn’t be able to get away with his insane tripling of U.S. forces in Afghanistan since taking office. Not only are police state groupies & war-profiteering, national security hawks of the Right the very ones who have tortured the Constitution over the last few years, they are also the same ones supporting Obama in continuing the same atrocities. Anyone serious about supporting the Constitution and State Sovereignty should band together in outing the neocons as the anti-constitutional monsters they are.

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Rand Paul and Military Commissions

By on November 28, 2009 in Elections, Terrorism

Ron Paul’s Senate-aspiring son takes some un-libertarian positions which causes controversy among the freedom movement.

“Foreign terrorists do not deserve the protections of our Constitution,” said Dr. Paul. “These thugs should stand before military tribunals and be kept off American soil. I will always fight to keep Kentucky safe and that starts with cracking down on our enemies.”

Seems like the self-described constitutionalist Rand should listen to his father, Ron, about the blatantly unconstitutional Military Commissions.

In the Name of Patriotism (Who are the Patriots?)

The Military Commissions Act is a particularly egregious piece of legislation and, if not repealed, will change America for the worse as the powers unconstitutionally granted to the Executive Branch are used and abused. This act grants excessive authority to use secretive military commissions outside of places where active hostilities are going on. The Military Commissions Act permits torture, arbitrary detention of American citizens as unlawful enemy combatants at the full discretion of the president and without the right of Habeas Corpus, and warrantless searches by the NSA (National Security Agency). It also gives to the president the power to imprison individuals based on secret testimony.

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Jonathan Bean on Lysander Spooner

By on November 27, 2009 in Constitution, Federalism

Recently, I wrote about Lysander Spooner’s dubious argument that the unamended Constitution as originally ratified prohibited slavery in a book review I did for The New American.

Jonathan Bean, Research Fellow at the Independent Institute and professor of history at Southern Illinois University, commented on my review of his book “Race & Liberty in America” (I believe it was him … you never know) and defended Spooner with the following.

Spooner may have been wrong about the Constitution (people disagree) when he wrote the argument that it did not — and could not — uphold slavery. While you may disagree, his argument is actually an extremely _strict_ interpretation of the law as a) protecting individual rights well-accepted in Anglo-American law; and b) contracts must be consensual: by tracing the history of American charters and constitutions, he shows that blacks never “signed over” their rights to the Government and submitted to slavery. And they had no right to hand over their children. There was no legal basis for man-stealing. It happened over time AND THEN it was codified. So he is arguing against a “living Constitution” theory that the law must grow to accept new conditions (namely slavery).

While I agree that slavery is vile, horrific and thankfully abolished, I must disagree that Spooner is “arguing against a living Constitution” and for a strict interpretation.

race-and-liberty-americaSlavery was definitely around at the time of the ratification and was debated by both the drafters and ratifiers. They both decided to mostly leave it as a state issue to be solved by popular sovereignty.

Spooner’s argument that the Constitution was not binding on African-Americans is actually much stronger but if you follow this line of thinking to its logical end, then you must conclude that the Constitution is not binding on anyone who wasn’t alive at the time of the ratification. And that’s actually what Spooner eventually argued.

BTW, if you’re interested in a good stocking stuffer, Bean’s book might be just what you need.

http://www.amazon.com/dp/0813192315?tag=tenthamendmentcenter-20&camp=213381&creative=390973&linkCode=as4&creativeASIN=0813192315&adid=0EQXSSW3WC4QYR3QBTQE&
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Anti-Constitution Libertarians

By on November 15, 2009 in Constitution, Liberty

This is just the opening salvo in what I hope to be a friendly and cordial debate among liberty enthusiasts regarding what role “constitutionalism” has to play in the future of the movement to fight statism and restore the protection of individual rights.

A recurring theme I’ve encountered is the schism between pro-Constitution libertarians and those libertarians who view the Constitution as a big-government parchment which paved the way for the federal leviathan that torments us today. A fact in the favor of the latter position is the enormous federal monstrosity which tramples individual rights on a daily basis.

Strategically, I always argue that the Constitution is the key to bringing together libertarians, traditional conservatives and anti-Globalists to fight our common enemy, statism. And to throw the Constitution to the curb is to ignore the lessons of the Ron Paul Revolution. [More on that in future posts.] Continue Reading →

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Race and Liberty in America

By on November 12, 2009 in Liberty, Originalism

My latest book review in THE NEW AMERICAN (of the Independent Institutes Jonathan Bean’s Race & Liberty in America) is online.

I’d like to get feedback from you Tenthers out there on my discussion of the great Lysander Spooner’s questional constitutionalism. Here’s an excerpt:

In the first area, the book includes writings of Lysander Spooner, who dabbled in some dubious constitutional arguments which coincidentally made whatever he liked constitutional and whatever he disliked unconstitutional. Spooner, while a brilliant mind and staunch advocate for liberty, incorrectly argued that the Constitution itself prohibited slavery years before the ratification of the 13th Amendment. Such a conclusion would surely have been a shock to both the drafters and ratifiers of the Founding period. Spooner, along with great minds like Frederick Douglass, espoused the libertarian interpretation of a living-breathing Constitution, which ignores any originalist constitutional understanding. It also rests on the dangerous notion that the central government has much more power than what was authorized at the ratification. As history has borne out, empowering the federal government with more power than it constitutionally has is detrimental to individual freedom over the long term. Instead, the book could have explored the writings of constitutionalists who used proper means to resist and fight slavery. For starters, many antislavery states nullified the Fugitive Slave Act that compelled the return of runaway slaves.

BTW, don’t let my minor criticism make you think I disliked the book. I actually thought that it was a truly enlightening read.

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