by Jack Hunter

My Charleston City Paper column from March 31, 2010:

With its recent passage, Obamacare has quickly become to the Right what the Iraq war was to the Left — a disastrous and costly mistake heralding unprecedented government action, expansion, and intrusion into the lives of American citizens. Conservatives consider forcing Americans to purchase health insurance every bit as unconstitutional as liberals once considered the Patriot Act.

Needless to say, any time massive, sweeping government action occurs, those who protest the loudest are usually those who Washington leaders ignore the most. But a number of states are refusing to be ignored.

As of this writing, 14 states have filed lawsuits against the federal government, declaring Obamacare to be in violation of the 10th amendment. Said S.C. Attorney General Henry McMaster, “A legal challenge by the states appears to be the only hope of protecting the American people from this unprecedented attack on our system of government.”

But what is “our system of government?” Today, strict constitutionalists who still adhere to the explicit letter of the law of our nation’s founding document are few. Those who still agree with James Madison, who wrote that the “powers delegated” to the federal government are “few and defined,” while those of the states are “numerous and indefinite,” have been outnumbered and out-lawyered by generations of politicians and judges who have magically discovered new and virtually limitless federal powers, rendering the rights of the states less numerous and more finite than ever.

As an example of just how far we’ve drifted, when Prohibition was enacted in 1919, Congress found it necessary to ratify the 18th amendment, a procedure the Founders intended to be the proper mechanism for any needed or necessary changes to the Constitution. Modern day prohibition, or the “war on drugs,” has been waged by executive order and various bureaucratic measures. The Constitution does not give the federal government this power — an obvious fact in 1919, hence the need for an amendment — and yet the federal war on drugs continues.

Anyone who really believes the Founding Fathers intended for the federal government to regulate, much less mandate, healthcare insurance needs to have his head examined. But what can Americans upset about this legislation do?

States’ rights challenges to Obamacare are certainly a step in the right direction, but does anyone believe the Supreme Court is going to side with the states and against the federal government? History suggests otherwise.

Perhaps it is time to cut the federal government out of the equation altogether. While supporters of Obamacare still point to Franklin D. Roosevelt and Lyndon B. Johnson as guiding lights, opponents might want to point to Thomas Jefferson and his theory of nullification.

Jefferson’s theory of nullification is fairly simple: The Constitution is a compact among the states where certain, limited powers were delegated to the federal government. Any powers assumed by the federal government that were not expressly delegated to it automatically become void.

In a recent interview with NPR, Thomas Woods, author of The Politically Incorrect Guide to American History, summed up Jefferson’s point: “Thomas Jefferson emphasized repeatedly that the federal courts are a branch of the federal government … I mean, if you and I are having a dispute and I refer it to my cousin, you immediately know the deck is stacked. So his argument was the states are the constituent parts of the Union, so therefore they have to make their interpretation of the Constitution count for something.”

Woods also noted that some of the earliest examples of nullification were in defiance of fugitive slave laws. In this case, some states refused federal orders to return escaped slaves to their masters.

Today, an undeclared nullification is taking place in some states concerning medical marijuana. Although the Supreme Court has determined that the practice is illegal, these states are ignoring federal dictates. With so many defying the federal government, the Obama administration has instructed federal prosecutors not to pursue these cases.

Is nullification “radical?” Perhaps, but no more radical than running up a $14 trillion national debt, starting undeclared “preventive” wars, or transforming our constitutional republic into a heavily centralized, European-style state. Is nullification “lawless?” Quite the opposite. Our leaders in D.C. are lawless in the sense that for too long they have ignored their constitutional restraints. Nullification would be a powerful check on Washington’s entrenched and unchallenged lawlessness, which was exactly Jefferson’s intention.

It is true that the economic implications of nullifying Obamacare could be complex and tedious, but no more so than the plan itself. Regardless, one thing remains clear: If those currently pursuing 10th amendment challenges to Obamacare are to take states’ rights seriously, they will have to find the courage to defy a federal government that does not.

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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