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24 June 2013

On Nullification

I love Facebook. I keep in contact with my family better than I would without it. I have reconnected with people that I lost track of, and I love seeing how they are doing. And I do politics on Facebook. Conversations there have been key to my learning. Typically, conversations with people who think I'm completely, absolutely wrong are the ones that I find most profitable. I'm learning to write clearly, to distill my argument to its core, and communicate it as concisely as possible, and these things are tremendously valuable. I owe a debt of gratitude to those folks that keep coming back, in spite of our mutual frustration, to tell me how wrong I am.

Used by permission.
I've been at it again this weekend. The 10th Amendment Center posted about Alaska recently enacting a law nullifying all unconstitutional gun control laws. It's pretty awesome, actually. Wish my State was doing that, but it's not likely any time soon. I shared their graphic (left) and said, "I love it when people not only talk like we have a Constitutionally limited government, but act like it. Gives me hope."

Pretty predictably, I was challenged on it. Nullification makes several of my friends uncomfortable, and no wonder. It's completely outside of the usual "three branches of government with checks and balances" line that we're taught in school. In fact, to really understand it, you have to take the usual understanding of our government and toss it. This is an OK thing to do, because the usual story bears only a superficial resemblance to what things are supposed to be like under our Constitution. But it can be an uncomfortable thing to do. (It can also be exhilarating; there are reasons why America became known as "the land of opportunity.")

So my friend asks me:

I thought Fed trumped State.... thing is, what if you live in a state that hates you or your lifestyle? Move? What if a state seeks to infringe a right?

Good and legitimate questions. I did my best to answer them. I am still very much a student of the Constitution, but I've put some time in on this particular topic.

The federal does trump State. BUT. Only in the specific and limited areas where the Fed is authorized to act. Otherwise, not only is it the State all the way, but federal interference is actually a violation of our highest law. The Supremacy Clause is so misunderstood. Have a look:

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, anything in the Constitution or laws of any State to the contrary notwithstanding.  
US Constitution, Article VII

It's the often over-looked phrase "laws of the United States which shall be made in pursuance thereof" that makes the limit, particularly in light of the 10th Amendment, which explicitly states that all powers not otherwise explained are reserved, placing them squarely outside federal jurisdiction.

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.

US Constitution, Tenth Amendment

Since Congress has a very short list of legitimate powers, there are many areas where States ought to be doing exactly what ALaska is doing here. And many areas of law that desperately need to be nullified. People like to paint nullification as a radical thing, but what do they expect? That the States should roll over and let the Feds walk all over them and usurp authority they were never intended to have? That's what usually happens. That's how the federal government got so overgrown. And it is likely that the process greatly accelerated with the passing of the 17th Amendment, when we switched to direct election of Senators.

In our nation's beginning, and to a certain extent still, there were two types of checks on the growth of the federal government: the horizontal checks, among the three branches that you hear so much about, but there are also vertical checks on its growth that arise through the State-federal interaction. It used to be that, because the States were responsible for the selection of Senators, they had a lot more pull; the Senator that allowed too much federal usurpation would find himself explaining to the very folks that felt the loss first: the State legislature that lost power in proportion to the federal gains. Behavior that tended to make the federal government grow more powerful would also tend to put the Senators that supported it out of a job, thus discouraging federal overreach. Whatever else it did, changing the way we select our Senators effectively booted the State governments, as entities, from the table, stripping them of voice or vote in the federal process. It dramatically shifted the balance of power away from local self-government and towards a powerful central government.

The federal government was never intended to be a powerful national government; if they had tried to sell that kind of agreement, ratification would never have happened. In fact, one of the Anti-Federalist talking points was that the Constitution created a national government, and thus should be quickly rejected. The Federalists were adamant that this is not the case, the Constitution creates a confederacy only, with the Federal government only functioning in a specific, narrow role. The States had recourse, through their election of Senators. Should the federal attempt to do what they ought not, the States could require the Senate to vote against it to check the action. When we switched to direct election of Senators, we crippled that vertical check, and Nullification took on an importance all out of proportion to what it would have originally had.

But even so, Nullification was a mainstream thing, early in our history. The Sedition Act, which was passed by Congress and signed by John Adams, established stiff fines and jail time for speaking and publishing things critical of the Federal government. Jefferson strongly opposed the law.

The judiciary was, for Jefferson, certainly not the answer to such problems. For one thing, the Supreme Court in his day was packed with Federalists who would surely have upheld the constitutionality of the Alien and Sedition Acts. For another, the Supreme Court was itself a branch of the federal government, and thus not an impartial arbiter. And finally, the judiciary was composed of human beings no different from the rest of mankind. "To consider the Judges of the Supreme Court as the ultimate Arbiters of Constitutional questions," he argued, "would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for privileges of their corps -- and their power is the more dangerous as they are in office for life, and not responsible, as other functions are, to the Elective control. The Constitution has elected no single Tribunal. I know no safe depository of the ultimate powers of society but the people themselves."

Nullification, by Thomas Wood, Page 45

The problem of federal overreach, in the case of the Alien and Sedition Acts in gross violation of the 1st Amendment, was one that caused considerable discussion. Jefferson and Madison had considerable correspondence, and Jefferson drafted some resolutions that got passed around quite a bit, eventually becoming the basis of the Kentucky Resolutions of 1798:

1. Resolved, That the several States composing the United States of America, are not united on the principle of unlimited sumission to their general [federal] government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they consituted 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 part, its co-States forming, as to itself, the other party: that the 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 means of redress. [Emphasis added]  
(Nullification, Page 47; emphasis in the book.)

 For me, understanding Nullification required a whole new way of looking at the US. So many days we recited in school, "...One nation, under God, indivisible..." but that is not an accurate representation of what the Founders created or the People ratified when we adopted the Constitution. The old documents refer to "these united States" as often as they do "United States," and it's never the United States. They didn't solidify 13 colonies into a single nation, they created a permanent alliance - a confederacy - among 13 independent nations. They didn't do away with the State governments because the vast majority of governance took place at the State level, with primarily foreign interactions (both peaceful and hostile) in mind for the powers delegated to the federal government, though there are a few items intended to regulate - that is, make regular, in the usage of the time - the interactions between the member States. 

The federal government was never intended to be a giver of gifts or a righter of wrongs. Its legitimate scope is extremely limited, with the vast bulk of governance [supposed to be] left to the discretion of the individual State. So, what if your State doesn't like your lifestyle? You can see the answer to that question in slavery. Some places allowed it, some didn't. Certainly that was a way of life to those who practiced it, however distasteful it is to us now. If you don't like the laws in your State you can work to see them changed, or yes, you do have the option of leaving. My husband and I have discussed leaving our State for exactly that reason, more than once. The idea is all the more appealing since we have little hope of effecting the change we'd like to see. We look at things like homeschooling laws and gun laws when we are considering a place in order to get a feel for the laws in the place we're considering. It's certainly not the only thing we consider, but it is a factor. It would take an Act of God to make me move to California because their laws are so hostile to freedom. I want nothing to do with the place. But they have the right of self-governance, and can be like that if they want. 

Certainly some can be done with limiting the Feds by sending the right sort to represent us in DC. But it is also perfectly legitimate to expect that the State will require the federal government to stay within, or at this point it will more often be to return to the limits set forth for it. And those limits, until changed by an authentic act of the People through the amendment process, are the supreme law of the land.

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