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:
- 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?
- 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?
Restoring federalism will not only require courageous and determined state elected officials it will also require states to enact legislation that severs the coercive funding relationship they all have with the federal government.
For decades the federal government has used the carrot and stick of federal funding to force states to bend to its will. The federal government now collects and then redistributes money to states for infrastructure, education, health care, and countless pet projects in the form of earmarks. These federal funds often come with strings attached and states with limited ability to raise their own tax rates more often than not meekly comply. The states have thus allowed themselves to become subservient to the federal government through their dependency on federal funding.
The sad irony is that much of the revenue the federal government doles out to the states is collected from the state’s residents to start with so the entire exercise is a money recycling scheme with DC skimming off the top for administrative costs and redistribution to other states.
So how to strike the first blow for independence? The Federal Funds Act.
From the 10th Amendment Center:
Already introduced in Georgia (HB877), Oklahoma (HB2810), and Washington (HB2712), such laws would require that all federal taxes come first to the states Department of Revenue. A panel of legislators would assay the Constitutional appropriateness of the Federal Budget, and then forward to the federal government a percentage of the federal tax dollars that are delineated as legal and constitutionally justified. The remainder of those dollars would be assigned to budgetary items that are currently funded through federal allocations and grants or returned to the people.
Once states are able to keep the tax dollars that otherwise would have been returned to them after a trip through the bureaucracy they will have much greater freedom to defy the diktats of the federal government and restore the liberties of their citizens.
I was going to write another Federalism article today but in researching the topic I found this great article by Congressman Rob Bishop (R-UT) that I would recommend instead. The Congressman is the founder of the Congressional 10th Amendment task force.
In the article Congressman Bishop mentions an issue, among a host of others, that I myself have considered at length to be the biggest obstacle to restoring federalism; the intoxication of power. Even conservatives who claim fealty to the Constitution and a desire to downsize government want to cling to their power rather than actually return much of it to the states.
“Our battle cry will be the commitment to ‘lose power’. We will return home for re-election proud to have made a step in re-establishing the Constitutional “vertical” separation of powers concept. We will return proud of voluntarily relinquishing federal control. We will return proudly having lost power in Congress. We will also have struck a blow in defense of individual liberty.”
Much to my chagrin, this battle cry did not rouse the troops. republicans in Washington, so long out of power, were not in the mood to lose the power that had so recently gained.
Congressman Bishop “gets it”.
I’ve been a reader and contributor on several blogs for many years and it never ceases to amaze me how much everyone has bought into the Liberal premise of the supremacy of the federal government over state governments, a premise that directly contradicts the Constitution and the Founders’ intent.
Rarely is there a blog post or article that challenges this premise, when in these increasingly lawless and extra-constitutional times a challenge is desperately needed.
It is my opinion that if we are to have any real chance of reducing the size, scope, and reach of the federal government we must start at the state level by electing constitutional conservatives to our state legislatures and governorships. We must elect people who acknowledge, understand, and will fight to seize back from the federal government the states’ rightful, constitutional powers that have been steadily usurped since the end of the Civil War.
Even the most conservative and successful Republican governors have failed to adequately challenge the supremacy of the federal government and instead dutifully accept the conventional view that the federal government is the ultimate authority.
For example, twenty-six states have sued to stop Obamacare. The fact that they are suing the federal government rather than just ignoring what is a clear violation of the Constitution, specifically the plain text of the 10th Amendment, is evidence of the institutionalization of the premise.
What would the federal government do, what could they do, if all twenty-six states submitted the PPACA to their respective legislatures for them to vote on the legislation’s constitutionality and if found unconstitutional, simply refused to implement it or allow its implementation? The federal government is not the ultimate arbiter of what is and is not constitutional.
What would the federal government do, what could they do, if energy producing states simply ignored the diktats of the EPA?
We all know our history and we know that the federal government is a creation of the states and that many, if not most, of the states would not have ratified the Constitution if they knew that their states would one day become subservient to the diktats and whims of the central government. The purpose of the federal government was as a means for the states to speak with one voice when dealing with the rest of the world. Internal affairs were to be the province of the states.
There are clear historical reasons that the Founders specifically enumerated the powers of the federal government and explicitly stated our inviolable rights in the Bill of Rights; they feared, rightly, an all powerful federal government. Recent polls show that the public is more fearful of a powerful central government than they are of any other large institutions. The public would support states reasserting their authority.
Just this morning I finished reading an article about the EPA’s vision for its future as an organization dedicated to sustainability. Sustainability is one of those words that will mean whatever the EPA says that it means and it represents an enormous power grab by an unelected and dangerously unaccountable bureaucracy. An EPA whose mandate is sustainability would have the authority to dictate where you could build your house, how you should build your house, what appliances can be installed in your house, design your city’s sewage system, and countless other details clearly outside their jurisdiction.
From where does the EPA derive this authority? When will states stop allowing the EPA and other bureaucracies dictate to them how they will manage their natural resources, provide for their poor, build their roads, care for their seniors, educate their students, etc?
It’s obvious that the federal bureaucracy has been captured by the Left and that they are using the bureaucracy to implement all of their socialist policies to the detriment of our liberty and our economy. Only be seizing back their rightful power can the states neuter the federal government and end the spreading tyranny.
The Left needs centralization to succeed. They can’t control us if power is dispersed among the fifty (seven) states and we can’t escape their tyranny if power is centralized.
Imagine the environmentalists having to fight battles in all fifty states rather than a single battle in Washington? Imagine an Alaska in charge of its own natural resources without the meddling interference of San Francisco Liberals who’ve never seen Alaska except on the Natural Geographic channel.
Imagine a Texas that didn’t have to worry about a lizard shutting down oil drilling in all of west Texas.
Although it is important to continue to fight to elect conservatives to federal office, it is more important, in my opinion, to elect hungry, 10th Amendment conservatives to state offices. So, when you start evaluating candidates for state office for 2012 ask them where they stand on the 10th Amendment and dive into their responses. Don’t allow them to espouse platitudes, look for a history of supporting federalism in their record, hold them accountable, and ask them what specific actions they will take to restore power to your state.
This must be a multi-pronged fight if we are to win and drive Liberalism into the same ash heap of history as Soviet Communism.