In response to federal overreach, most people tend to focus
on three types of actions to stop them: elections, conventions, and lawsuits.
While they all have their place in an overall strategy to defend the
Constitution, none of them should be the first step forward. That is, if
you follow the advice of the “Father of the Constitution.”
Here’s what
James Madison had to say in Federalist #46. The Influence of the State and Federal Governments
Compared:
“Should
an unwarrantable measure of the federal government be unpopular in particular
States, which would seldom fail to be the case, or even a warrantable measure
be so, which may sometimes be the case, the means of opposition to it are
powerful and at hand. The disquietude of the people; their repugnance and,
perhaps refusal to cooperate with officers of the Union, the frowns of the
executive magistracy of the State; the embarrassment created by legislative
devices, which would often be added on such occasions, would oppose, in any
State, very serious impediments; and were the sentiments of several adjoining
States happen to be in Union, would present obstructions which the federal
government would hardly be willing to encounter.”
Let me
translate. Madison said that when the federal government passes an
unconstitutional measure there are powerful methods to oppose it – amongst the
people and in the states. He also pointed out that those methods were
available even for warrantable, that is constitutional, measures.
Madison told us
of four things that should be done to resist federal powers, whether merely
unpopular, or unconstitutional.
1.
Disquietude of the people – Madison
expected the people would throw a fit when the feds usurped power – even using
the word “repugnance” to describe their displeasure. That leads to the next
step.
2.
Repugnance and Refusal to co-operate with the officers of the Union – Noncompliance. The #1 dictionary of the time defined
repugnance as “disobedient; not obsequious” (compliant). If you want to
stop the federal government, you have to disobey them. Madison also suggested
that people would perhaps directly refuse to cooperate with federal agents.
This is an approach we preach here every day at the Tenth Amendment Center.
James Madison apparently knew what we know today. The feds rely on cooperation
from state and local governments, as well as individuals. When enough people
refuse to comply, they simply can’t enforce their so-called laws.
3,
The frowns of the executive magistracy of the State – Here Madison envisions governors formally protesting
federal actions. This not only raises public awareness; executive leadership
will also lead to the next step – legislative action.
4.
Legislative devices, which would often be added on such occasions – Madison keeps this open-ended, and in the years soon
after, which I’ll cover shortly, we learn how both he and Thomas Jefferson
applied this step.
Madison also
told us that if several adjoining States would do the same it would be an
effective tool to stop federal acts. To repeat, he said that doing this “would
present obstructions which the federal government would hardly be willing to
encounter.”
Judge Andrew
Napolitano agreed recently and said that people need to stop enforcing
unconstitutional federal laws. He also said that if you could get an
entire state doing this, it would make federal laws “nearly impossible to
enforce.”
What’s
important to note here, are some glaring omissions. The powerful means
that Madison told us would be used to oppose federal power successfully did NOT
include federal lawsuits in federal courts. He also did NOT include
“voting the bums out” as a strategy, either.
FIRST
RESPONSE
Compare that with
how people generally respond to what they consider unconstitutional or
unpopular federal acts today.
The first thing
I tend to hear from people who are opposed to a federal act is the “vote the
bums out” mantra. We’ll fire congress, right? Or some people tell us we
have to sue and let the courts decide.
I’ve got some
news for you. There’s nothing from the founders – anywhere – in which
they tell us that our first response to extreme, repeated violations of the
constitution and liberty is to vote the bums out, or sue the feds in federal
court. Nothing.
LEGISLATIVE
DEVICES
Thomas
Jefferson followed up on this in 1798 with the same kind of advice. That
year, the Adams administration passed a wildly unconstitutional attack on the
freedom of speech with the Alien and Sedition Acts. In response, while
sitting as vice-president, Jefferson secretly drafted the Kentucky Resolutions,
and here’s a little of what he wrote:
“The several
states composing the united states of america are not united on a principle of
unlimited submission to their general government.”
“where powers
are assumed which have not been delegated, a nullification of the act is the
rightful remedy”
“that every
State has a natural right in cases not within the compact to nullify of their
own authority all assumptions of power by others within their limits: that
without this right, they would be under the dominion, absolute and unlimited,
of whosoever might exercise this right of judgment for them”
Madison was
consistent in his views on this. In 1798, he also drafted and help pass
something known as the Virginia Resolutions, a state-level “legislative device”
in response to the Alien and Sedition Acts. Here’s a key part:
in
case of a deliberate, palpable, and dangerous exercise of other powers, not
granted by the said compact, the states who are parties thereto, have the
right, and are in duty bound, to interpose for arresting the progress of the
evil, and for maintaining within their respective limits, the authorities,
rights and liberties appertaining to them.
Like Madison
advised in Federalist #46, both he and Thomas Jefferson advised a state-level
response to dangerous federal acts. In 1798, neither of them even
mentioned voting or lawsuits.
Jefferson told
us that a “nullification is the rightful remedy.” And Madison told us
that states are “duty-bound to interpose.”
When Daniel
Webster called on these same principles in response to military conscription
plans during the war of 1812, he said:
“The operation
of measures thus unconstitutional and illegal ought to be prevented by a resort
to other measures which are both constitutional and legal. It will be the
solemn duty of the State governments to protect their own authority over their
own militia, and to interpose between their citizens and arbitrary power. These
are among the objects for which the State governments exist; and their highest
obligations bind them to the preservation of their own rights and the liberties
of their people”
Here’s the
bottom line. You are not supposed to wait 2 or 4 years for some new
politicians to get in office and give your permission to be free. You are not
supposed to wait 2 or 4 or 6 years for some federal court to tell you, “ok, you
be free now.”
You are
supposed to stand up resist, refuse to comply and nullify unconstitutional
federal acts – as soon as they happen.
All the money
and time you throw at firing congress or winning in federal court will never,
ever work – unless you start resisting right here in your state. And,
that resistance needs to be your first response, not your last.
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