Does Heritage Understand the Constitution?

Recently, I came across this piece from Heritage ,which makes many misleading assertions regarding “nullification”. On many issues Heritage is a “good guy.” Sadly this is not one of them. From their commentary, it appears that they cannot, under any circumstances, allow any cracks in the veneer of authority that D.C. has crafted.

I thought I would give a shot at a point by point refutation.

HERITAGE:  ”Nullification Is Unconstitutional”  The Nullification Temptation: In order to challenge the federal government’s unconstitutional actions, states are looking for options to reassert their legitimate role in the constitutional structure of federalism. Unfortunately, despite good intentions, some have been tempted to embrace nullification—the claim that an individual state legislature has the authority to veto federal laws.

RESPONSE:  That is not strictly so, I will lay out what we at the Tenth Amendment Center consider to be “nullification”. If it did mean (literally) ” that an individual state legislature has the authority to veto federal laws,”  then I suppose I would agree that nullification was a bad idea and illegal. That is not, however, and never has been, what nullification is. The most assertive version of nullification is a state law that makes enforcement of an unconstitutional federal act illegal within the state, and sets penalties for any official who attempts to do so.  A veto, by comparison, would literally make the law null and void in every state in the union, and even make it cease to exist.  Such a view would be empowering one state to rule the country.  See the difference?

HERITAGE: Supreme Law of the Land: At the center of our system of government is the United States Constitution: All federal and state officers and judges are bound by oath to support it and the laws of the United States made in pursuance thereof. The Constitution is the supreme law of the land—not the Supreme Court, the federal government, or an individual state legislature, for that matter.


Two-Party Tyranny

Frequently, when I challenge the propriety of requiring mandatory sexual assaults or pornographic pictorial consent to fly the “friendly skies,” I am answered with a non-answer – the TSA is a Republican creation. Similarly, when I  oppose bailouts, I am confronted by the claim that many bailouts happened under Bush. These are just two of countless incidences of people defending the indefensible with the non-defense of, “This is a ‘bi-partisan’ policy.” That is to say, “Our predecessor did this – so it should be OK for us to as well.”

This defense lies along the most vapid of logic! It is as if to say that ‘since my predecessor took it upon himself to steal, murder, cheat and violate the Constitution (and even though I ran my campaign under the premise that this was wrong) I am now in the right to carry on in this way as well!’ Carried to it’s logical conclusion… under THIS logic, there can be no objective behavioral standards placed upon our elected officials! Because the standards would always be  compared to the last set of elected officials. They would constantly be degraded… as the next official pushes the envelope beyond where it was for his predecessor.

The “party-comparison/he-did-it/she-did-it” defense cannot possibly be a real defense! If you just compare yourself to the other party (and not the Constitution), then you only justify your own misbehavior by the misbehavior of your opponent. The fact is, you can find members of both parties that believe in any given policy position, at any given time. You can find both Democrats and Republicans who are pro-gun control, pro-life and/or pro-war…. because both parties obviously have members who may support any given violation of the Constitution. No one party has a monopoly on the Constitution – and you cannot justify unconstitutional actions by the Federal Government on the basis of precedent. In other words, it can not justify your violation(s) of the Constitution to say that a member of the other party also thinks a particular policy to be “Constitutional” or not!


Did I Miss the Revolution?

The argument against Nullification, with a lot of folks, seems to be that at the end of it all… if the Federal Government wins in their own courts, we (the States/People) must choose to either back down, or attempt secession.

This argument is absurd!
Lets follow the logic:

1. A State legislature determines that a federal action lays outside the scope of Congressional authority. The examples of this are legion, but to name a few: Making it illegal to publish critical statements about the President, making it illegal to trade with foreign nations, initiating a Draft to invade Canada, establishing a National bank, making possession of a specific medicine a crime, infringing upon the right to keep and bear arms by taxation or regulation, making it illegal to enter into certain contracts, making it mandatory that citizens assist in the kidnapping and return of escaped slaves, etc, etc, etc…

The State would then pass some sort of hindering legislation (at the Tenth Amendment Center we call this a Nullification, as Thomas Jefferson called it in the Kentucky Resolution). This legislation could be as mild as a statement disapproving of the federal action in question, or as severe as a bill making it illegal to enforce the abominable usurpation within the State, and calling for severe penalties for Federal and/or State officials attempting to enforce the statute in question. Or anything in between.


Hamilton on “Necessary and Proper” and “Supremacy”

A couple of the commonly misunderstood parts of the Constitution are the Necessary and Proper clause, and the Supremacy clause. I thought I would publish what Alexander Hamilton wrote on the subjects from the Federalist #33. Remember that these papers where written during the debate over ratification, and widely circulated. They informed the ratifiers to the understanding of the document they where about to sign, and as such they are similar to writing in the borders of a written contract, they are legally relevant, and enforcable.

By way of a general explaination or summation of Hamiltons sentiments I offer this short summary. The Necessary and proper clause is simply declaring that the way the legislature would carry out their enumerated powers would be to pass laws that are incidental to their powers, and the Supremacy clause simply stated the obvious that in powers pursuant to the Constitution the laws of the union would be supreme.  In areas not pursuant to the Constitution however the laws of the states would still be supreme… DUHHH.

Without further hesitation, here is Hamiltons paper on the 2 clauses:


Arbitrary and Void for Vagueness

We as Americans have become much too accepting of the practice in D.C. of writing laws that are so long and complicated that no citizen could possibly be fully informed of their scope and effect. Surely a prime example of this would be “Obamacare,” however, this practice is older than that. For instance, the Patriot Act was 1500 pages (written before 9/11/2001 by the way) and was passed with no debate. In the last 10 years, 10 laws were >225,000 words in length. I know I for one simply do not have the time to keep up with that level of law making. James Madison famously wrote (in Federalist 62):

“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

Laws that are this lengthy are by their very nature “arbitrary” and of a tyrannical nature. Consider Senator Conyers’ comments regarding Obamacare. WATCH IT:


Whatever they can do for us, They can do TO us!

cross-posted from the Oregon Tenth Amendment Center

Many of us in the Libertarian movement mistakenly view the Federal government as a stick with which to hit the State government like a pinata.  I believe this view stems from the faulty belief that the Federal govt. can be limited by a simple piece of paper as if that paper somehow had a magical property that would prevent its own violation, that somehow the three branches of the Federal govt. are set inexorably against each other.  Of course, a honest look through history would convince any but the most naive, that this is not the case.  Branches routinely collude to eliminate any and all limits upon their power. The only realistic limiter of the powers of the three branches of the Feds is/are the State govt(s).  Consider the frailty of any other checks:


Otherwise known as “throwing the bums out,” elections have amounted to no check at all, every since I can remember .  In 1994, we had a big change in the composition of Congress (from Dem to Rep).  Most people said this was in direct response to the attempt by the Democrat-dominated Congress to pass “Hillarycare.”  Republicans were swept into office with the promise of smaller govt., eliminating the abuse that had been taking place within the welfare system, and of balancing the budget.  Oddly enough, govt. did not shrink at any time during the subsequent years of Republican control.  After six years of Republican domination in Legislature, what did we have?  A LARGER govt. than we had started with.

In 2000, we were promised that if we would just elect GWB we would finally have all the power in govt. that was needed to shrink it… and yet, in 2008, the size of govt. was much larger after 8 years of Bush, than before.  Out of the promises to shrink govt. and limit our involvement in foreign affairs, we got….wait for it….. MASSIVE DEFICITS, MEDICARE PARTD, TARP (WHICH AMOUNTED TO A FORCED CARTELIZATION OF BANKS A’LA MUSSOLINI), FIRST STIMULUS, CAMPAIGN FINANCE REFORM, THE CLASSIFICATION OF CO2 AS A POLLUTANT, ETC…… Surprised? Or NOT?


Tea Party downgrade? Delusions from the Ruling Class

cross-posted from the Oregon Tenth Amendment Center

Did we just have a Tea Party downgrade?

Of course the Mainstream Media (who like to call upon the government in general, and the Federal govt specifically, to solve every issue in Society) will tell you that the Tea party, with their intransigence towards any sort of tax increase, have caused the debt of the United States to be downgraded. I would ask any person who buys that mantra over to my personal bridge in New York (I’ll make you a great deal, and you can charge tolls to people who cross to pay for it). Seriously though, I have one thing to say… 16.7 trillion. That number does not even include unfunded liabilities! Some countries have been called basket cases for much less in debt relative to revenue.


The thread of truth behind the ridiculous assertion…

S&P (the ratings agency that downgraded us) specifically mentioned the debt debate and the reluctance/refusal to entertain any tax increases as a part of the solution – with this quote:
“Compared with previous projections, our revised base case scenario now assumes that the 2001 and 2003 tax cuts, due to expire by the end of 2012, remain in place. We have changed our assumption on this because the majority of Republicans in Congress continue to resist any measure that would raise revenues, a position we believe Congress reinforced by passing the act. Key macroeconomic assumptions in the base case scenario include trend real GDP growth of 3% and consumer price inflation near 2% annually over the decade.”

Given the association of the Tea party with the Republican party ( clearly, with the recent deal in D.C. this is a false impression), some may say that this is a Tea party downgrade; but if you read the whole story it becomes clear that we have simply been so profligate as to make ourselves unable to merit an AAA rating.

The truth of why we are going to continue to get worse:

We have been living in a Keynesian fantasy world for the last 50-60 years. Anyone who looks at America’s spending vs. revenue for the last 100 years will see a change that has occurred. We spend until we reach the debt ceiling, then we raise the debt limit. Any serious look at our treatment of the debt ceiling harkens to the old Bugs Bunny cartoon where Bugs draws a line in the sand… it gets stepped over… and then another line… followed by walking past it. Our debt limit has been and still is today no limit at all. It is simply an exercise in parliamentary procedure, to give the impression that our political “servants” are really minding the store (while they clearly are not)!