Nullification News And Thoughts
by Larry Perrault on March 3, 2011 at 10:17 AM
Some of you will recall that I have affirmed the legitimacy of state nullification of unconstitutional (critical adjective) federal government actions in the recent past. We need as many as possible to be well-informed and able to articulate and defend these issues. Adding the article below to what I have already read of the history of The US Constitution and the conversation surrounding it, it seems some favored strength in the federal government while some state representatives feared and spurned it. Among our noted founders, Thomas Jefferson was most expressive about state assertion of sovereignty, including his articulation of the very principle of state nullification in the event of federal overreach that some feared. Jefferson was perhaps the most libertarian-inclined of the founders; certainly the most extensively recorded among them, which might help in explaining his exceptional zeal among them for The French Revolution, which was not quite so lovely without America’s expressed constitution of human rights and fundamental law and morality. And James Madison seemed to appear on both sides of the issue.
In science and other areas of inquiry, explanation of indefinite data is often approached with a hypothesis to explain the available data. The hypothesis is overlaid on the data and assessed as to how well it accounts for it. While reading this article, it occurred to me how a hypothetical explanation seems to explain what might seem confounding data, quite fully and reasonably. Here it is:
There were two most potent animating principles at the time of America’s founding, both of which had been little or not at all expressed in previous history. Both general human liberty (yes I know it did not initially include most blacks, and the country paid for the initial failure to correct that history) and the respect of general human rights had too often been absent. We must look at the data from the perspective of THAT cultural context and not our own. So just using Jefferson and Madison as examples, Jefferson was consumed with the protection of liberty from coercive distant government. They knew that well; the English king. Madison had also made comments and assurances of the sovereignty of the states, but at times made others that seemed more supportive of federal power. Why? Because to THEM the definition of federal power was of the principles that were expressed in the national Constitution. Those concerned about federal authority and Madison when he made such statements, were concerned about maintenance of those Constitutional principles. THAT'S the authority that they wanted held over the states, so that THEY did not violate those fundamental principles, as governments are inclined to do. TODAY it is the federal government itself that is doing it. Really, most early Americans favored BOTH of these principles of liberty and fundamental law. They burned for one and assumed the other while fearing neglect of the first in the future.
Today, no one is opposed to the maintenance of those enumerated federal powers of The Constitution. But some of us see those powers as a tiny minority of what the federal government now asserts, while others see the federal government as best suited to legislatively impose what they sense as other moral obligations on society; mistakenly we believe, even if sincerely. In a nation that has experienced the most expansive production and prosperity in world history, it is hard for some to recognize that such intrusions upon liberty exact a social price. The rest of us see it as definitive of restricting liberty. And ironically, that price is most heavily paid by the least prosperous of society that they presume to represent.
Anyway, we conservatives believe it bodes best for everyone in society for liberty to be unconstrained, except by those fundamental constitutional principles and the laws of jurisdictions closest to the citizens; states and localities. Other moral activities are best tended to by private organizations and voluntary resources. So states should assertively and unapologetically nullify unconstitutional assertions of the federal government. And here is recent and relevant information about nullification.
In the oh-so-important realm of mass-communications, many conservatives who had previously not been exposed to the concept and its history, heard Walter Williams endorse it while substituting for Rush Limbaugh on Monday. That’s very important. There’s much fuller information at some web sites, including http://www.nullifynow.com/ that posted Williams’ comments. But those sites will catch a tiny fraction of the number of ears that Libaugh’s program catches. Walter Williams is the veteran economics professor at George Mason University in Fairfax, Virginia. Here is audio of that comment from Williams on Rush’s show: http://www.nullifynow.com/?powerpress_pinw=332-podcast
On Tuesday, I received an email from a conservative group with a link to its endorsement of legislation introduced in Arizona called endorsing “the first broad-based State Nullification Reaffirmation Act designed to return the power to the people and their states and rein in federal government abuses of misinterpreted power.” Now, the 14th Amendment is really a clarification of the application of a principle that already existed in The Constitution. I can accept the idea of a clarification of existing Constitutional principle that seems to be expressed in the use of the word “reaffirmation,” and I don’t think it’s their intention. But, I utterly reject any construal of The Patriot Action Network’s use of the word, “establish” in its discussion of principles of the act that is taken to suggest that nullification is not ALREADY A LEGITIMATE AND CONSTITUTIONAL PRINCIPLE.
The Tenth Amendment Center is all about the constitution’s Tenth Amendment reservation of powers to the states and the people. And “Who’s Supreme? The Supremacy Clause Smackdown” provides some of their detailed information about state sovereignty, particularly with regard to the popular (yes even, perhaps particularly, in American law schools) misinterpretation of The Constitution’s “Supremacy Clause.”
Yesterday, a committee of the Idaho Senate decided not to proceed with a bill to nullify the health care law. Here’s an article at The Idaho Reporter.com One Senator cited the same, “I can’t find authority in The Constitution for the state to ‘pick and choose” which federal laws it likes.” It has nothing to do with “picking and choosing.” It has to do with The Constitution and the oath to uphold it. But proponents are devising how to rework the proposal.