by Steve Palmer
“It is certain that the most natural and human government is that of consent, for that binds freely, … when men hold their liberty by true obedience to rules of their own making.â€, William Penn
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King Constitution
It seems a paradox that people who claim to revere the rule of law, are sometimes the same people who would advocate disobeying the law. How can someone advocate for the rule of law at the same time as advocating for civil disobedience, nullification or jury nullification? Wouldn’t these activities undermine the rule of law and lead inevitably to chaos and anarchy?
The beginning of the answer to this paradox comes to us from Thomas Paine. In Common Sense, a document which “challenged the authority of the British government and the royal monarchyâ€, Paine wrote,
so far as we approve of monarchy, that in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.
So the law, the king, is the Constitution. Everyone, even our federal legislators, judges and executive officers, is a subject of the Constitution. When our legislators write laws that violate the Constitution, it is our duty as citizens to defend the king…. To resist. It is our duty as jurors to find accused violators of Unconstitutional laws to be not guilty and it is the duty of the state official to nullify Unconstitutional federal legislation. The citizens and the States are empowered, and duty bound, to ensure that federal officials remain loyal to King Constitution.
The next piece of the puzzle comes to us in the often discussed Kentucky Resolutions of 1798, where Thomas Jefferson wrote, “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no forceâ€.
Upon reflection, we may realize that disobeying a void law is like dividing by zero. It can’t be done. In order to be disobeyed, a law must first be legal.  Civil disobedience, nullification and jury nullification are ways for us to formalize the recognition that a law is void.
So the paradox is answered when we recognize that the lawless behavior comes from attempting to enforce an unconstitutional law, not from resisting it.
King Democracy
There was a time when most Americans understood these duties of ours. Here in Pennsylvania, many of our citizens were involved in the underground railroad.  They risked their own freedom and prosperity in order to help escaped slaves find freedom in the North.  Northern juries often refused to find these people guilty and Pennsylvania’s legislators passed Personal Freedom Acts to resist the Federal Fugitive Slave Acts of 1793 and 1850.
More recently, some of us became complacent and took our Liberty, and the prosperity which accompanies Liberty, for granted. Many of us forgot these important duties of ours. Many of us even forgot about King Constitution. We are taught in grade school that we live in a democracy and democracy means “majority rulesâ€. Whatever the majority decides must be obeyed. In this view, the Constitution was just a set of rules for finding the will of the majority.
This idea is antithetical to our founding. The Declaration of Independence, our foundational document says,
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed
The majority cannot vote to take away your Rights without your consent!
One important component of our democratic republic is decision making by a majority. However, it is often forgotten that our democratic republic also depends upon mutual consent.  The majority may pass laws, but the majority cannot consent to them on behalf of the minority.
As the Continental Congress, and even William Penn knew, if we are not governed through consent, then we are governed through force… tyranny. Just like King George III, King Democracy is a tyrant.
Monopoly or Competition?Â
Another common belief in America today is that the supreme court has the last word in deciding whether a law is constitutional.  In Supreme Injustice, Andy Quesnelle addressed this misconception. He wrote about the conflict of interest that occurs when the federal government is the sole arbiter. Andy wrote,
In a conflict between A and B, we, as a society, do not permit A to be the sole judge of who wins. Nor do we allow B to do so. The reason is simple. If A can decide the merits of his own conflict with B, B loses, every time. Conversely, if B can decide the merits of her own conflict with A, B wins. Its simple human nature. No person can be trusted to be the judge in their own case.
That is one reason that it would make no sense for the federal government to be the sole arbiter. Another reason is that competition will improve the quality of the supreme court’s decisions. Without competition, the supreme court can look at these words,
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;â€
and decide that they give the congress the authority to determine how much wheat a Pennsylvania farmer may grow on his own farm to feed to his own hens.
It is part of the American experience that monopoly power reduces quality and competition increases quality. Why should this be any different for interpreting the Constitution?  The federal government has declared a monopoly for itself which doesn’t exist. Rather than blindly submit to the monopoly, the States may – the States must – decide for themselves whether a law is Constitutional. In addition to providing a check against bad decisions, this oversight also promotes good decisions from the federal government.
Like the People, the States have the power and the responsibility to refuse to consent to Unconstitutional laws. We must all make sure that our own State officials are aware of this responsibility.
Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.
Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given
Great article! It's really all about we the people being in charge. We just need to start acting like it!
Steve, another excellent post, thanks for writing this! The essential point that you made, in my opinion, is that the Constitution is king, not any personality, individual, group, or anyone else…
Great, thought-provoking article! Thanks!
I'd love to see someone take this a step farther and write about how the people of a state surrender some of their rights in order to form a state government via a state constitution. To me, this process requires that a majority will decide how much power to give to the state. This seems to mean that the minority, to the extent they exist, will be dominated by the will of the majority. Further, since most state constitutions provide for amendment by some kind of majority vote, the minority, at any time, will always be dominated by the majority.
Unless I'm missing something, this argues against the following from the above article:
"The majority cannot vote to take away your Rights without your consent!"
And, unless I'm missing something, this is just a variant of 'might makes right.' I'm not objecting because I see no better way to run a society. I'm just observing that, in the end, nothing is perfect. As such, I prefer having a smaller, local government that I MIGHT have some control over rather than a HUGE, distant monster in Washington DC.
Interesting. Question, though – does a sovereign ever truly "surrender" rights, or simply delegate powers due to efficiency?
Yes, I think 'delegate' is a better word than 'surrender.' I"ll try to remember that point. Thanks!!
Yes, I think 'delegate' is a better word than 'surrender.' I"ll try to remember that point. Thanks!!
As a practical matter, "delegate" becomes "surrender" until the donor has enough power to take them back.
Well, refusing your consent isn't risk-free, and it isn't easy. I meant that sentence in an ethical sense, not necessarily a practical one. The extreme imbalance in power between the central government and the individual is why it is so important for the states to also act to protect our rights.
It is worth noting, too, that in a small community, my choice to live in a place signals my consent to the local policies. If the local government becomes too oppressive, I can move. The higher the level of government, the harder it is to move away and the less my choice to stay serves as a signal of my consent.
Yes, I see your point about the 'ethics.' I have wondered where one could go on the planet today to enjoy one's natural rights in peace.
I have also often thought that one of the great facets of the US was the idea of 49 other states to choose from if the current state becomes unpalatable.
It is VERY troubling to me that the federal government controls so much of our daily lives today. There is no way to get away from them! I live in Oregon in the country on acreage and on a well and yet, the feds control how much water my toilet tank holds and how much water comes out of my shower head! My local County Commissioners wouldn't even think of trying that but the central planners 3,000 miles away in DC have no problem with it. It's just amazing…
That was clearly not the original design and I, for one, MUCH prefer the original design to the all-powerful monster run by narcissistic morons, losers and moral reprobates we have now. IMHO, it's completely out of control and even scary. Everywhere I look, I see BIG trouble on the horizon and much of it is thanks to the inane policies coming out of Washington.
Again, thanks for a great, thought-provoking article!
I love to read this site and visit many others and push the idea of nullification and check out the pushback. Sites like Restate are notorious for pushing back on the idea – one moderator even called Jefferson a proto-Marxist! When challenged on his source of such nonsense, he retorted, "Do your own research". My fear is we are now in a position where this must happen and happen quickly, but how to nudge the idea along is troublesome because I don't see the testicular fortitude existing in our state representatives for any major resistance to very large federal legislative initiatives like ObamaCare. Am I wrong in thinking this?
I fear we are heading towards a precipice and commented on the state of affairs: Civilizations Thin Veneer – Precariously We Stand
I agree with this sentiment. I think things are going to change radically in the favor of state power over federal power very quickly in the next ten years.
GJ – thanks for the feedback – you've been doing great work to get the word out at redstate and elsewhere. Keep at it with the blog, I've been reading it regularly!
Wow, I am really humbled and thank you for your praise. This site is a beacon of hope in a sea of hopelessness for me.
Mr. Merits' web site, Wolves of Liberty, is full of EXCELLENT material and I'm hoping that everyone here will head over there for more education:
http://www.wolvesofliberty.com/
I don't know if it's possible, but it would be helpful if there were a prominent link to his site from here (and vice versa).
I do have a link, but I will take your advice and make it more prominent. This site deserves to stand out amongst the long list of sites I list.
We must all come to understand that as long as anyone depends on their minority status to determine their rights then the majority will only recognize a degree of rights based solely upon a specified set of what the majority considers allowable and therefore, contingent freedoms. In other words, the majority will always restrict the rights of the minority unless the minority can base their rights upon something other than the specific attributes and or definitions of that minority.
The government is not inclined to, nor does it obligate itself to ensure the Rights of any person in this country although it was created to protect the Rights of every individual. It is up to the individual to combatively insist and aggressively pursue his or her Rights before the government. It is People, first and foremost, that form the State Republics through acting on a cooperative and voluntary basis, but with an extreme prejudice toward their Rights. It has been said that the majority opinion is the true ruler; if that is the case then perhaps it is time for us all to become the majority and not base our Rights upon a specific status as a minority. This does not preclude any attributes that a person has who is a member of a minority or their identity, but in the eyes of the majority and therefore the law, a minority is only a minority and will remain as such as long as they base their Rights solely upon their minority status.
The problem with every democracy is that the majority always rule to the exclusion of the minority. The reason the Founders purposed a Republic instead of a democracy was to blunt the force and power of the majority through layers of checks and balances to equal out the playing field. The more democratic a political system becomes the more the majority “lords over” the minority. It is strange that people are all for democracy until it actually rules against them and in a democracy, since the majority always rules, the minority will always suffer under the prejudices of the majority. There is a defined tyranny within a democracy and yet so many clamor for such a system because they feel that it will provide them with more voice while just the opposite is true. In every democracy the government system appeals to the material interests of the majority’s large voting block, in turn the government will then merely placate the minority with a degree of rights and yet never “grant” them the same degree of rights as the majority.
The established elite ruling class, the governing “gentry” fears nothing more than a unified People. As long as sectionalism can be promoted and therefore pseudo-legalized, then this nation will remain divided and that is exactly what the “State” desires: a house divided. Until We take the stance that the only status that is legally meaningful and powerful is that of the Individual Citizen, then We will remain a conquered People subject to the will of majoritarianism and their preferred democratic tyranny. The majorities will always, whether by vote, referendum or even by a form of legal or judicial enforcement, secure their perceived rights over the rights of a defined minority. Majoritarian democracy desires the artificial designation of minorities, it keeps the “majority” holding the reigns of power while providing the minority with a degree of satisfaction based upon their struggle to gain or retain a certain allowance of rights, but such a system will never provide equality because it inherently promotes and maintains social, racial, religious, ethnic or sexual divisions among the People.
The “State” readily supports the idea that a particular class or group requires or is entitled to recognition based upon that class or group or category, because segmentation will continue to allow its decisions to be based upon the majority and keeps the perceived minority, of which ever particular group, in check or within a majority defined scope of “civil rights”. In such a “democratic” system the minority will always yield to the will and power of the majority. The majority will always enact policies which ensure that the minority is not strengthened and will never allow the total empowerment of the minority. The “State” will always seek to breed social divisions in order the restrict minority power or empowerment. The solution therefore, must be found through a very powerful and very different view: that of the Majority of Citizenship.
It is interesting to note that you rarely hear the word Republic, but democracy is tossed out by most politicians and for good reason: a democracy will always protect the majority first and keep any minority under the thumb of the ruling powers. Minorities are not only required, but desired within democratic majoritarian system of government because it will always demand that all minorities yield to the will and allowances of the majority. A Republic is anathema to democratic majoritarianism because it equalizes the power and force of government among all People of the Land when the People press their Sovereignty, based solely upon their Natural Rights of Citizenship, over the “State”.