Nullification is no mere “Constitutional Right”

As Thomas Jefferson made clear when he wrote the Kentucky Resolutions in 1798, Nullification is not something that’s permitted to the people of the states by any document – it’s their natural right to resist oppressive power. From this, one could easily posit that this right is one that the federal government is barred from infringing under the 9th Amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

More on the 9th in a future power. Here’s Jefferson:

“that every State has a natural right in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them”

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James Madison, Thomas Jefferson, Nullification and “Insupportable Oppression”

Some of the so-called “experts” who want you to believe that nullification is invalid because James Madison wrote what seems to be a vehement opposition to it in the 1830s are just uninformed. Others, are just plain liars.

Either way, they’re wrong.

Here’s the deal.

John Calhoun and South Carolina proposed a specific kind of nullification in response to the “Tariff of Abominations,” as it was called. Madison denounced that. He used some serious language to write against it. And he was correct. He repeatedly referred to what he was opposing as “Her” doctrine of Nullification, or South Carolina’s “peculiar doctrine” of nullification.

In other words, he was addressing – specifically – what people were asking him about, and that was the South Carolina proposal that they could invalidate a federal act and the rest of the country would have to assume they were correct unless they held a convention to override the single state.

I’m not going to spend more time on this – because that’s obviously not a federalism ideal. And I agree with Madison’s opposition to that style of nullification – primarily the idea that every other state has to auto-agree with the one nullifying.  That’s just not the case.

But, what’s most important about Madison’s “Notes on nullification” is the fact that he did indeed consider nullification, as Jefferson did, a proper remedy.

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It’s All About Liberty

The founding generation had many reasons for wanting to form a ‘more perfect union.’

Having fought a long bloody war for freedom, many recognized the advantages the union offered in terms of mutual defense. At the signing of the Declaration of Independence, Benjamin Franklin famously quipped, “We must all hang together, or assuredly we shall all hang separately.”

Along those same lines, many founders believed the states would fare better in international relations interacting with other world powers as a united entity. Even operating as a union, the Americans were at a significant power disadvantage when dealing with England, France, Spain and other European powers. Separately, they would have virtually no power.

Then there were the economic advantages of a union. In much the same way unity increased diplomatic power, it also increased the America’s economic power.

Alexander Hamilton even argued that a single general government would conserve American resources.

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An Anti-Federalist’s Purpose for Proposing the Supremacy Clause

As the Philadelphia Convention concluded,  55 delegates returned to their home states and began the promotion/demotion phase of the ratification process. This process commenced with the convention delegates addressing the citizens of each state and each state’s ratification delegation.  Each Framer communicated his comprehension of the legal elements of the charter negotiated for during this historic endeavor.

The delegates generally represented two distinct factions known as the Federalists, supporters of ratification, and the Anti-Federalists, those opposed to the proposed constitution. Delegates regularly traded intellectual barbs through written prose promulgated in the local periodicals of the states.

An occurence which became commonplace during this process was Maryland’s Attorney General, Luther Martin responding to letters written by the Landholder,  a nom de plum (pen name), utilized by fellow Philadelphia Convention delegate Oliver Ellsworth of Connecticut,  in which Mr. Ellsworth attempted to minimize Martin’s contributions and negatively impact his service.

Martin’s letter was published in the Baltimore Maryland Gazette on March 19, 1788.

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Rekindling the American Revolution

If we want to reclaim American freedom, there are no shortcuts.  There is no petition to Washington that will solve our problems.  There is no champion to win the White House and set us free.  The path to American freedom begins in our own states, our own communities, our own homes, and our own minds.

For as long as the people of this country are willing to tolerate tyranny, tyranny will continue to thrive.

In this letter to H. Niles, John Adams tells us the true foundation of American freedom.

“…But what do we mean by the American Revolution? Do we mean the American war? The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people;…

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A Founder’s Proclamation of Universal Truths and the Frogs Desiring a King

In an letter addressed to the citizens of Maryland, Convention Delegate and Maryland Attorney General, Luther Martin explained his motives for withholding support for the newly constructed general government prior to ratification of the Constitution.

This letter was published in the Baltimore Maryland Gazette on April 4, 1788. The thought provoking sentiments of Mr. Martin are as true today as they were in his era. Especially regarding the history of mankind and negative traits of human nature when they exert undue influence upon societies. Mr. Martin exposes the deficiency of a Bill of Rights to the charter, while proclaiming commons sense principles necessitous for establishing a virtuous system of governance.

To the Citizens of Maryland,

If those, my fellow citizens, to whom the administration of our government was about to be committed, had sufficient wisdom never to err, and sufficient goodness always to consult the true interest of the governed, – and if we could have a proper security that their successors should to the end of time be possessed of the same qualifications, it would be impossible that power could be lavished upon them with too liberal a hand.

Power absolute and unlimited, united with unerring wisdom and unbounded goodness, is the government of the Deity over the universe! But remember, my fellow citizens, that the persons to whom you are about to delegate authority, are and will be weak, erring mortals, subject to the same passions, prejudices and infirmities with your-selves; and let it be deeply engraven on your hearts, that from the first history of government to the present time, if we begin with Nimrod, and trace down the rulers of nations to those who are now invested with supreme power, we shall find few, very few, who have made the beneficent Governor of the Universe the model of their conduct, while many are they who, on the contrary, have imitated the demons of darkness.

We have no right to expect our rulers will be more wise, more virtuous, or more perfect than those of other nations have been, or that they will not be equally under the influence of ambition, avarice, and all that train of baleful passions, which have so generally proved the curse of our unhappy race.

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Founders Turning in Their Graves

“A republic, madam, if you can keep it.”

So said the ever-quotable Benjamin Franklin upon emerging from the Constitutional Convention debates in 1787.  Franklin’s now-famous statement to an inquisitive Philadelphian causes us today to pause and reflect.  Have we kept the republic that Franklin and his contemporaries bequeathed us?

A recent poll answers this query with an emphatic “No!”.  According to a Gallup survey, 71% of Americans believe that the Founders would be disappointed in the United States today.  This comes on the heels of another Gallup survey showing that Congress’s approval rating has hit its lowest mark ever at 10%.  President Obama doesn’t fare much better, garnering only 36% approval.

Are Americans beginning to realize that the government they have bears no resemblance to the one designed by the framers of the Constitution?  If the 71% are correct in saying that the Founders would be embarrassed by America today, the next logical question we should ask is “Why?”.

Could it be because we’ve completely abandoned the structure of government that they fought the British for and then jealously guarded while debating the Constitution?  Maybe we can find the answer in what some founders said about how American liberty would be preserved.

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Should ALL laws be enforced? Madison said NO!

In a day and age when the federal government is despised, out-of-control and has so many laws on the books that it makes your head spin, there is at least one ‘conservative’ who is concerned that the federal government isn’t dishing out enough law and order.

In a recent post at the conservative legal blog Volokh Conspiracy, Todd Zywicki finds it appalling that the Department of Justice is celebrating the fact that the Defense of Marriage Act was declared unconstitutional by the Supreme Court. He doesn’t feel this way because of his opinion on DOMA, but rather he is concerned that the law is being disrespected by the Obama administration.

“I am clearly not alone in being concerned about the unwillingness of state and federal officials to defend the duly-enacted laws of their states. Indeed, refusing to defend the law and acquiescing in an adverse judgment against it seems tantamount to a retroactive veto by the Executive Branch. If Eric Holder is ‘delighted’ that the law is invalid, wouldn’t the appropriate response in our system of government be for the President to propose the repeal of the law with which he disagrees, rather than effectively retroactively vetoing it?”

Zywicki has a point about the law being disrespected by the Obama administration. From drone murders, to illegal surveillance, to arming drug gangs as a pretense to curtail gun rights, to funding Islamic extremist dictators, the Obama administration has made a complete mockery of the rule of law in America. But the recent DOMA ruling isn’t the case to complain about. Whether you support the decision or not, the idea of state non-compliance with federal laws shouldn’t be on trial here. The problem with our country clearly isn’t the fact that too many states have rebelled against the edicts of the federal government. On the contrary, it has been the states routinely jumping into the federal snake pit that has gotten us into this mess.

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