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Restoring Federalism – Step Two

December 31, 2011

Previously I have recommended that the first step in reestablishing federalism is the implementation of the Federal Funds Act so that states can extricate themselves from the financial relationship with the federal government that promotes the bullying, bribery, and extortion of the states.

The second step is for states to pass legislation, the Constitutional Review Act, which explicitly expresses their right to declare acts of the federal government unconstitutional and of no force within their borders.

From the very beginning of our history states have maintained that they have the right to disregard legislation that they deemed to be unconstitutional, the first instance being the Virginia and Kentucky Resolutions in 1798. The Resolutions, which were in response to the Alien and Sedition Acts of 1798, were written respectively by Thomas Jefferson and James Madison, the author of the US Constitution.

The Resolutions were very controversial at the time and threatened to tear our new nation apart. Ten other states declared their opposition to the Resolutions and stated their belief that states did not in fact have the right to nullify federal legislation and that the right to do so was the exclusive domain of the courts.

New Hampshire’s resolution for example stated:

That the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government; that the duty of such decision is properly and exclusively confided to the judicial department.

The idea that it was the sole province of the courts to determine the constitutionality of federal legislation evolved into the doctrine or judicial review and was particularly influenced and institutionalized after Marbury vs. Madison.

Although today we take judicial review as established and indisputable, it is not a power explicitly delegated to the judicial branch by the Constitution and it is from this silence on the part of the Constitution that is the basis for the Constitutional Review Act.

My task here is not to cover the full history of the Acts, Resolutions, and talks of secession and war they engendered but rather to provide some background information for my recommendation of nullification.

Although Jefferson and Madison later distanced themselves from their respective Resolutions and stated that the states in fact did not have the right to nullify federal legislation, we cannot fully know why they did so. Perhaps they feared tearing apart the new nation or exposing it to danger from abroad through its disunity. Perhaps they feared more civil strife and bloodshed with the Revolution still fresh in the minds of many. Perhaps they feared how history would remember them if blood was spilled because of their efforts.

Whatever their reasons, I believe they were correct when they asserted that the states did in fact have the right to nullify federal legislation because as was stated in the Kentucky Resolution:

That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party, its co-States forming, as to itself, the other party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

In summary, the federal government was a creation of the states, the states created a government of limited authority, and the states retained all authority unto themselves not specifically given to the new federal government therefore the states retained the right to decide issues of constitutionality.

There are those who would argue that the courts are indeed the proper place to resolve issues of constitutionality and I largely agree, however, as Newt Gingrich and many others have pointed out, we can no longer trust the courts. The Left has worked for decades to install Leftists to the federal court who don’t interpret the Constitution, rather, they legislate from the bench and cite “penumbras and emanations” as their basis for the discovery of new rights.

The Left has been very successful in seeding the courts with their fellow travelers and we are all familiar with their strategy of trying to win in the courts what they cannot win in the legislature, Proposition 8 in CA, the various illegal immigration bills, et al.

A specific example is Roe v. Wade. Regardless of your position on abortion the Constitution does not grant the right to abortion or the right to privacy from which the right to an abortion was derived. Roe is perhaps the most famous case of judicial activism and one that continues to divide us to this day.

So, what are we to do? Do we submit to an increasingly activist court regardless of the plain and obvious examples of unconstitutional rulings? Or do we pursue another path?

I believe the path is via the Constitutional Review Act and the seizing of power back from the federal government.

Using, again, the example of Obamacare consider two outcomes in which Obamacare is upheld:

  1. The legislation is upheld in the Supreme Court and the states accede to federal power. In the event the GOP fails to rid us of this unconstitutional abomination we are now more subjects than citizens and are forever more to be dependent on the federal government for our health. The federal government is now free to mandate our behavior because the precedent has been established that they have that right via the Commerce Clause. Where does it end? Are we still a free people?
  2. The legislation is upheld but the twenty-six states that have gone to the Supreme Court to fight it do not accede to federal supremacy and instead reject Obamacare and do not allow its implementation within their borders. What then can the federal government do to compel compliance? Nothing. Can the legislation survive without half of the states participating and funding it? What would be the reaction of the other twenty-four states? What would be the reaction of the citizens and businesses of those states? Would they join their fellow “26ers” in their newly asserted freedom?

I believe that we are well past the times when such an approach would have led to bloodshed and secession, as Jefferson and Madison no doubt feared, and believe that such a reassertion of state power would lead to the reestablishment of a truly constitutionally limited government as the Founders intended. I believe that if the states were to stand up and simply say “no more” that the federal government would have little recourse to make states submit. In a nation such as ours, governmental power is dependent upon the willing submission to it by the people. Without cooperative submission that power evaporates.

Unlike the federal government, the state governments have to take care not to oppress their citizens; otherwise people can exercise one of their basic freedoms, the freedom of movement, and simply leave for another state.

Liberalism cannot survive the decentralization of power and we cannot survive additional centralization. Who will win this battle for freedom?

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