Several states have filled bills opposing the Patient Protection and Affordable Care Act, and a few like Wyoming and Maine have included penalties for Federal Agents who attempt to enforce a law the state claims is unconstitutional.  It should not be surprising that there are those who oppose these ideas.  The Tenth Amendment has become interesting, and the debate will be fierce.  It is incumbent on those of us who favor checks and balances as a safeguard to essential liberty as cumbersome as it may be over the expediency of a totalitarian system to be able to articulate the message, and calmly refute all the screams of the ‘status quo’ who are shocked and angry that this debate has been opened up again.

NPR posted on its website an editorial by Christopher Weaver against these proposed laws.  The opinion piece really had no substance and is not really even worth checking out which is why I am not providing a link, but Christopher introduces an argument that I feel will be a keynote argument against these types of legislation: The Supremacy Clause.   Mr. Weaver cites an e-mail he received from Timothy Jost, a Washington and Lee University law professor; “This is blatantly, flagrantly unconstitutional. Federal law is supreme to state law and states cannot punish its enforcement.”  as his proof that any such law is unfounded.

Here is the part of the Constitution Mr Jost is referring to:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 

Proponents of totalitarianism always bring up this clause but seem to overlook the words “in Pursuance thereof”, which simple logic dictates a federal law would have to be within the framework of the constitution to be valid.  Since we know the Supreme Court knocks down federal laws from time to time, there are unconstitutional laws passed by congress so the debate will really be about how you interpret the constitution, and then what is the rightful remedy when congress goes beyond its bounds.  It is irresponsible of our opponents to use their positions as professors of law to try to circumvent this debate by misapplying the text of the constitution.

I am sure if you removed the emotion of partisan politics from the equation Professor Jost would certainly agree that we are a Nation of Laws, not a nation subject to the whims of men.  He may even agree that the Constitution is a legal document therefor its interpretation is subject to the same standards applied to interpreting any legal document, in fact the Constitution’s interpretation should be held to the highest standard since it is the supreme law of the land.

Fortunately for us, we have a wonderful resource in a book published by the Tenth Amendment Center titled “The Original Constitution: What it Actually Said and Meant” where author Robert G. Natelson discusses in detail the 18th century rules for interpretation.  Opponents in favor of interpretation based on the whims of those in power are willfully ignorant of the protections found in the ideals of a written constitution.  Liberty is hard and requires responsibility from those who claim to want to live under it; opponents prefer the convenient velvet shackles of a descent tyranny rather than bear the burden of freedom.   

Friends, this debate is just beginning, and if you intend to take part, you must understand and be able to articulate the concepts of liberty, and be willing to accept the responsibility that comes with it.  Time will tell if this generation is up to the task.

cross-posted from the Colorado Tenth Amendment Center

Geoff Broughton
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