Washington Post/AP: Idaho GOP gets ready to nullify health care reform/What Does That Mean?

In Obama’s State Of The Union Speech, he said we all share the same ideals. Well, not exactly. We may all want opportunity, equality, and prosperity for everyone; may even believe we want constitutionality. But achieving that and how such a state would look and operate, mean different things to different people. I always emphatically warn people not to underestimate the power of ideology, when they assume that liberals must understand the destructiveness of their proposals. I’ve seen how this works in other areas, so that eminently intelligent people quite rationally embrace ideas we might see as abhorrent or crazy, simply because they approached a matter with some flawed premises. We are clearly after different objectives and the two sides will rarely be resolved. In such political differences, it seems to me that some people occupy a different conceptual and perceptual universe. They see reality through different lenses and really can’t see what seems so obvious to many of us. That’s why they will so often see conservatives as morally or intellectually flawed: conservatism is otherwise incomprehensible to them. In one regard, they ought to be pitied. But, that’s not the point I want to make here, which is that there is strong reason to question why we carry on an argument in the same nation. In the past two years, of all the speakers and writers with a public platform, only Walter Williams has in a couple of columns suggested we might best part ways. I have felt this way: let them build THEIR utopia and leave us alone to our own understanding of The Constitution.

But another way to separate at least our domestic ideals, would be for states to reassert their sovereignty, as I believe mass media has intimidated states from doing. Both of these ideas are thought in mass-culture circles to be “extreme.” And for most of my life, politicians and observers have run like scalded dogs from the dreaded term. But, I have said for a long time now that if what “mainstream” (I never use the term because the media that we call that does not reflect the public, but pushes and pulls it) forums consider is the standard, then you are darned right I’m an extremist. I’m not in their ballpark and don’t want to be. But on Thursday Jan. 20, The most “mainstream” Washington Post published this AP story: "Idaho GOP gets ready to nullify health care reform".

You will see in the story, that what Idaho proposes to do is described as “states asserting superiority over the federal government.” That is typical to popular discussion of considerations of state assertion. This particular article mentions the “obscure 18th century doctrine (most notably asserted by Thomas Jefferson) of nullification. Yes it's obscure because contemporary American popular culture is historically errant. But, this and the typical description of “nullification” is not accurate. Most contemporary Republicans will also identify it wrongly, if they are familiar with it at all. In December, Virginia Attorney General Ken Cuccinelli appeared on MSNBC’s “Hardball with Chris Matthews. Cuccinelli is commending a proposed amendment to The US Constitution to give states deference that I think they already have irrespective of an amendment; to excuse themselves from unconstitutional federal regulations. In this case, Cuccinelli is talking about a proposed power to repeal. When Matthews says he wants to appeal to the radical conservative state's rights, nullification crowd, Cuccinelli responds “no...”, that nullification is when a state doesn’t like a federal law, and fold its arms and refuses to cooperate.

Cuccinelli is a lawyer of course, and the one who is prosecuting Virginia’s case against Obamacare’s unconstitutional mandate and contravention of Virginia’s law protecting them from federal health care interference. And he’s someone I like very much. But it’s hardly any surprise that a contemporary law school would not afford him a fuller awareness of what “nullification” means in this context, and how it came about. “Lawmakers in six other states — Maine, Montana, Oregon, Nebraska, Texas and Wyoming — also are mulling “nullification” bills,” So since in the face of the federal onslaught of the past few years, many states have become uncommonly assertive, and Idaho is specifically pondering nullification, SOMEONE should offer a better explanation of what that actually is.

The Bill of Rights with The Tenth Amendment were the end result of deliberations before The Constitution was established, about the relative powers of state and federal governments. After its establishment, ALL government officials at both state and federal levels were required to swear an oath to The US Constitution. What is today alluded to as “the supremacy clause” of the Constitution is what the most heard voices of today refer to as ruling out challenges to federal authority. In not a few places, you will find that rendered as, the "Constitution and the laws of the United States...shall be the supreme law of the land...” But the nub of the controversy is in what is left out. In full it reads, “Constitution and the laws of The United States made in pursuance therof…” Now “pursuant to” can be rendered as “afterward” or as “according to” or “comporting with.”

The latter would mean as states’ rights defenders interpret the phrase, that only the constitutionally enumerated federal powers and laws that are consistent with them, are supreme. The former could suggest that any federal law preempts any contradictory state or local law. But if that were the case, why would The Bill of Rights culminate in a meaningless Tenth Amendment which was precisely added to assure and codify the interest of those concerned with the possibility of federal intervention and says, “the powers not delegated to the United States by the Constitution, our prohibited by it to the States, are reserved to the States respectively, or to the people”.

Why would James Madison have written in response to those concerns in Federalist #45, “If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.” Why over a decade later in rejection of the Alien and Sedition Acts passed by Congress, would Thomas Jefferson in The Kentucky Resolutions of 1798 write, “1. Resolved, 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 a 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 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 measure of redress,” and also explicitly cite that Tenth Amendment to The Constitution?

In this and in direct references to the necessity and propriety of state nullification of federal encroachment of constitutional principle and the sovereignty of the states, Jefferson was referring not merely to the ability but the duty of all government officials to hold all other agencies of government accountable to the compact of The Constitution, whether upward, downward or laterally, in accordance with their oath. It isn’t about disagreement. It’s about the principles and agents of the compact of The Constitution.

When we have arrived to a society in which the Congress flouts The Constitution with the vast majority of breaths that it takes, it is scarcely any surprise that most organs of government and of popular culture entirely misunderstand it and the mechanisms posed to secure its respect. You can read much more about American and constitutional history at the web site of Tom Woods www.tomwoods.com, the author of the book that affirmed the impulses of the governor and the state senator of Utah. Tom Woods is generally libertarian and suspicious of both major parties, not entirely without reason. He is a Harvard graduate with a Ph.D. in history from Columbia who is a meticulous constitutionalist. I am not quite a down-to-the-ground libertarian, but beyond constitutionally enumerated powers, that is mostly my disposition with respect to the federal government. There is much about the principle of The Tenth Amendment and the prerogatives of the states at www.tenthamendmentcenter.com


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