Written by Joe Wolverton, II, J.D.
Although some self-described “conservatives” now claim that nullification is unconstitutional, others view nullification as a proper and constitutional approach for checking federal overreach and are working to apply this approach through state legislatures. Taking notice, the Wall Street Journal published an article on its website sketching the various efforts across the country to nullify unconstitutional acts of the federal government.
As the Journal
article reports, state legislators in California, South Carolina, Tennessee,
Georgia, West Virginia, Oklahoma, Missouri, and Indiana are stepping up and
stopping the enforcement of various federal acts within the borders of their
states.
The “trend,” the author writes, is “spreading.” It
would need to, to match the spread of the federal kraken’s tentacles into every
aspect of life and into every fundamental liberty guaranteed by the
Constitution.
Specifically mentioned in the Wall Street Journal piece
are federal attempts to regulate firearm possession, to build National Security
Agency (NSA) listening posts in several states, and to force Americans
regardless of ability or desire to purchase an approved health insurance plan.
Regarding this last overreach, the Wall Street Journal
reports, “Conservative lawmakers in at least seven states have proposed laws
that would prohibit state agencies and officials from helping the federal
government implement the federal healthcare law and would authorize the state’s
attorney general to sue violators.”
At The
New American, we will continue to publish
and praise every attempt by state lawmakers to check
federal usurpation and to nullify
every one of its unconstitutional acts, every time.
In “clarification” of its article on nullification,
the Wall Street Journal
notes:
An earlier version of this post stated that such state
laws seem to implicate the U.S. constitution’s Supremacy Clause, which says that
federal law trumps state law when the two conflict. Rather, such laws might be
allowed under Supreme Court rulings that, with some exceptions, prevent
Congress from compelling state officials to execute federal law.
That update corrected half of the mistake, but
revealed another error.
First, let’s dismiss this recurring and ridiculous
idea that somehow any federal law “trumps state law when the two conflict.”
The “Supremacy Clause” (as some wrongly call it) of
Article VI does not declare that federal laws are the supreme law of the land
without qualification. What it says is that the Constitution "and laws of
the United States made in pursuance thereof" are the supreme law of the
land.
Read that again: “in
pursuance thereof,” not in violation thereof. If an act of Congress
is not permissible under any enumerated power given to it in the Constitution,
it was not made in pursuance of the Constitution and therefore not only is not
the supreme law of the land, it is not the law at all.
If only every journalist, every talk show host, and
every state legislator could understand this simple fact: Whenever the federal
government passes any measure not provided for in the limited roster of its
enumerated powers, those acts are not awarded any sort of supremacy. In that
case, they are “merely acts of usurpation” and do not qualify as the supreme
law of the land. In fact, acts of Congress are the supreme law of the land only
if they are made in pursuance of its constitutional powers, not in defiance of
that authority.
The Founding Fathers understood this. For example,
speaking at the convention considering ratification of the new Constitution in
New York, part-time Constitutional Convention attendee Alexander
Hamilton said:
I maintain that the word supreme imports no more than
this — that the Constitution, and laws made in pursuance thereof, cannot be
controlled or defeated by any other law. The acts of the United States,
therefore, will be absolutely obligatory as to all the proper objects and
powers of the general government…but the laws of Congress are restricted to a
certain sphere, and when they depart from this sphere, they are no longer
supreme or binding.
He put a finer point on the subject in The Federalist, No. 33:
There is no position which depends on clearer
principles, than that every act of a delegated authority contrary to the tenor
of the commission under which it is exercised, is void. No legislative act,
therefore, contrary to the constitution, can be valid.
Other founders, speaking in other state ratification
conventions, expressed the same understanding of the “supremacy” of federal
law.
The meaning [of the Supremacy Clause] which appears to
be plain and well expressed is simply this, that Congress have the power of
making laws upon any subject over which the proposed plan gives them a
jurisdiction, and that those laws, thus made in pursuance of the Constitution,
shall be binding upon the states.
When Congress passes a law consistent with the
Constitution, it is to be binding on the people. If Congress, under pretense of
executing one power, should, in fact, usurp another, they will violate the
Constitution.
Couldn’t be much clearer than that.
Next, to his credit, the author of the Wall Street Journal
article mentions that a Supreme Court ruling “might” “prevent Congress from
compelling state officials to execute federal law.”
Although he doesn’t identify it, the tactic referred
to by the author is a well-established principle of federalism called
anti-commandeering.
Put simply, anti-commandeering prohibits the federal
government from forcing states to participate in any federal program that does
not concern “international and interstate matters.”
While this expression of federalism (“dual
sovereignty,” as it was named by Justice Antonin Scalia) was first set forth in
the case of New York v.
United States (1992), most recently it was reaffirmed by the high
court in the case of Mack
and Printz v. United States (1997).
Former Arizona Sheriff Richard Mack was one of the
named plaintiffs in the latter landmark case, and on the website of his
organization, the Constitutional Sheriffs and Peace Officers Association, he
recounts the basic facts of the case:
The Mack/Printz case was the case that set Sheriff
Mack on a path of nationwide renown as he and Sheriff Printz sued the Clinton
administration over unconstitutional gun control measures, were eventually
joined by other sheriffs for a total of seven, went all the way to the Supreme
Court and won.
There is much more “ammo” in this historic and
liberty-saving Supreme Court ruling. We have been trying to get state and local
officials from all over the country to read and study this most amazing ruling
for almost two decades. Please get a copy of it today and pass it around to
your legislators, county commissioners, city councils, state reps, even
governors!
The Mack/Printz ruling makes it clear that the states
do not have to accept orders from the feds!
Writing for the majority, Justice Antonin Scalia
explained:
As Madison expressed it: "The local or municipal
authorities form distinct and independent portions of the supremacy, no more
subject, within their respective spheres, to the general authority than the
general authority is subject to them, within its own sphere." The Federalist No. 39, at
245. [n.11]
This separation of the two spheres is one of the
Constitution's structural protections of liberty. "Just as the separation
and independence of the coordinate branches of the Federal Government serve to
prevent the accumulation of excessive power in any one branch, a healthy balance
of power between the States and the Federal Government will reduce the risk of
tyranny and abuse from either front.”
When the federal government assumes powers not
explicitly granted to it in the Constitution, it puts the states on the road
toward obliteration and citizens on the road to enslavement.
Although it is encouraging to read about its growth in
the pages of the mainstream press, the need for nullification to continue
spreading is great. The government in Washington, D.C. is out of control and it
is time for every citizen to demand that every state legislator perform his
constitutionally imposed duty to protect the Constitution.
The best way to do this is to reverence our founding
document by educating ourselves as to the legitimate relationship between the
states and the feds and then insist that the limits on power established in the
Constitution are respected and enforced.
Joe A. Wolverton, II, J.D. is a correspondent for The
New American and travels
frequently nationwide speaking on topics of nullification, the NDAA, the Second
Amendment, and the surveillance state. He is the co-founder of Liberty
Rising, an educational endeavor aimed at promoting and preserving the
Constitution. Follow him on Twitter @TNAJoeWolverton and he can be reached at jwolverton@thenewamerican.com .
Source:http://www.thenewamerican.com/usnews/constitution/item/17484-wall-street-journal-takes-notice-nullification-trend-is-spreading Saturday, 25 January 2014 12:45
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