by Jim Delaney, New York Tenth Amendment Center
In previous posts, I have often alluded to civil disobedience and state nullification as preliminary remedies to federal usurpation, the ultimate remedies, of course, being that of secession and insurrection.
At a recent Monticello College sponsored seminar, we were told that to restore constitutional order we must all actively participate in a “cultural transformation”, meaning that the woes of American society fundamentally stemmed from a cultural–not political–breakdown; that a lack of personal virtue, faith in a higher power, and personal responsibility is the root cause of our social, economic and political malaise; that we must return to those core American principles which shaped who we once were as a people before the social engineers and neo-Marxists took over. To achieve these transformative ends, the presenter made it clear that it was our individual responsibility to ensure that education–both home-schooling and public–should once again infuse our youth with the importance of free-market capitalism, personal and public virtue, personal responsibility, and authentic ownership of property versus ownership-by-credit; that an individual’s passionate pursuit of a vocation vs a profession was much more productive and healthier for individuals, families and a free society than merely a dispassionate commitment to pursuing a lucrative career. He explained that these virtues and values characterized those stellar men and women who founded our country in 1775 – 1787. And, of course, he made it clear that such a cultural transformation would not come easy and would require a substantial period of time and unremitting personal engagement to achieve.
Reflecting on his excellent commentary, my concern is that while we few can, indeed, plant the seeds of cultural rejuvenation–and we definitely should try–the smothering canopy of socialism which has so deeply perverted the very foundations of our once free and enlightened society will, despite our best efforts, prevent the timely germination of those seeds culminating in our society’s suicide. So, my more assertive solution is to better ensure a rejuvenated free society by both affirmatively thinning out and boldly cutting down that toxic canopy. But, again, I feel that a rational personal philosophical justification for this more assertive approach to restoring and defending traditional American values is needed.
So, here’s how I see the succession of steps required to achieve constitutional order and cultural transformation: active political and judicial engagement to resist overreach, followed by civil disobedience, tenacious nullification, and, if necessary, secession.
Though mindful that civil disobedience is the the essence of constitutionalism, absent which there is no effective recourse but armed resistance, it is also clear that for disobedience to be effectual the freely and openly disobedient individual must be willing to bear the burden of legal sanctions, e.g. incarceration. Without the willingness to accept punishment, one’s reliance upon civil disobedience to right a wrong perpetrated by government or other offending entity is a self-delusional contrivance.
As Martin Luther King, Jr. wrote from his Birmingham jail, “I submit that an individual who breaks the law that his conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.” And so it is.
Notable examples of successful civil disobedience are the civil rights movement and women’s suffrage, among others, which effectively served to remedy unconstitutional or otherwise unconscionable action or inaction on the part of government.
In his “Resistance to Civil Government” (1849), Henry David Thoreau underscored the pre-eminence of the individual in a civil society with these statements: “A government in which the majority rule in all cases can not be based on justice; we should be men first and subjects afterward; there are nine hundred ninety-nine patrons of virtue to one virtuous man; a wise man will not leave the right to the mercy of chance, nor wish it to prevail through the majority; any man more right than his neighbors constitutes a majority of one; there will never really be a free and enlightened state until it comes to recognize the individual as a higher and independent power, from which all its own power and authority are derived, and treats him accordingly.” Thus, he asserts the justification for civil disobedience when clear violations of the sanctity of the individual are committed.
And since individuals are the essential elements of society, its culture, its communities and the states in which they dwell, it is not a big leap to rationally apply this truth to Americans and to the United States of America.
Regarding the American Civil War, aka War of Northern Aggression, though the southern States lost the war and, with the barrel of a Union gun to their heads, were compelled to accede to a forfeiture of their constitutional right to secede in the future, in truth they never really lost their inherent right to nullify or to secede. Why? Because, by definition, it is an inherent and unalienable right. It may be instructive to note that as a condition of their ratifying the US Constitution in 1788, New York, Rhode Island and Virginia still reserve their right to secede, a claim which was agreed to by the ratifiers at the Constitutional Convention. Surely, this inherent right cannot be logically denied to all states.
As Sen. Henry Cabot Lodge writes, “It is safe to say there was not a man in the country, from Washington and Hamilton to Clinton and Mason, who did not regard the new system as an experiment from which each and every state had a right to peaceably withdraw.” And in a textbook at West Point before the Civil War, “A View of the Constitution”, written by Judge William Rawle, it is stated that “the secession of a State depends on the will of the people of such a State.” Thus, a persistent historical belief in the individual’s and, by extension, the individual states’ inherent right to decide their political fate.
In his “Democracy in America”, Alexis de Toqueville observed that “The Constitution of the United States was formed by the free will of the States; these, by uniting, did not lose their nationality or become fused in one single nation. If today one of those same States wishes to withdraw its name to the contract [which created the union], it would be hard to prove that it could not do so.” And as history has clearly shown, it was only by sheer weight of overwhelming military force that this inherent contractual right was denied to the Confederate States of America. (Note: it is for me revealing that no Confederate leader was brought to trial for treason after the war. I suspect the reason for this is that since a trial would have forced a verdict on the constitutional legality of secession, federal prosecutors wisely opted to conveniently circumvent that issue altogether. No sense losing while you’re ahead.)
Essentially, since secession is not explicitly addressed, nor is it specifically prohibited, in the US Constitution, this unifying document can, in fact, be accurately described as a “contract at will”, and that, therefore, the unity of the States is solely dependent upon the mutual benefits derived by both the federal and state governments from that relationship. In his “How to Resist Federal Tyranny in the 21st Century”, Tom Woods states that “If you enter into a contract with somebody, never, ever would you say that the other party in the contract can exclusively interpret what it means…[when] the federal government has a monopoly on interpreting the Constitution …they’re going to interpret it in their own favor.” This of course, applies to all branches of the federal government. In effect, like all contracts, both parties must have the inherent power to enforce the contract’s provisions, failing which it ceases to be a contract but merely a means of asserting supremacy by one of the parties over the other.
Important to note is that Amendment IX declares that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people” and Amendment X states that “the powers not delegated to the United States are reserved to the states respectively or to the people.” Thus, since the power to separate is not denied to them in the Constitution, it can be logically concluded that the States and the People have implicitly retained the inherent right to separate. And since the federal government, which is inclusive of the Congress, the Executive and the Judiciary, is a party to the contract with the States, if the federal government were to overstep its Constitutional authority by exercising powers not specifically granted to it how else could unconstitutional federal acts be thwarted if not by nullification or secession? Without the means of escaping a broken contract, it would have to be assumed that the States and/or the People would be inherently willing to succumb to any manner of federal overreach or tyranny. But since no reasonable person would think such was the framers’ intention, nor do I believe a free people would be so readily inclined to tolerate such servility, I think it fair to say that nullification and, indeed, secession, are the reserved rights of the states and of the people.
Of course, short of secession, nullification, a well-grounded and peaceful Constitutional remedy, is the states’ most efficacious and least disquieting defense against federal encroachment. We see this today in the number of states which have effectively nullified Obamacare, firearms regulation and other federal usurpations which have violated the people’s trust and exceeded constitutional restraints on the federal government. And, of course, whether or not nullification is effective depends upon the tenaciousness of the the nullifying state(s). And if offended states routinely and obsequiously allow any of the branches of the federal government to overreach their constitutional authority, nullification is but an empty theory.
However, as Thomas Jefferson said, “there is a rightful remedy to the federal government’s uncontrollable quest for power. It’s called nullification.” So, it’s much more than theory, but only the will of the states and the people can make it so. Nullification means invalidating and rendering null and void any executive edict, legislative mandate or judicial fiat emanating from DC which violates the constitutional contract between the states and the federal government. (Carefully note here that nullification should never be restricted just to legislative or executive overreach, but to judicial overreach as well. Take note, Arizona.)
Without an effective balance of power between the states and the federal government as contracting parties, the framers fully understood that discord and disunity would be inevitable. Thus, Section 8 of the Constitution (enumeration of federal powers) and the Bill of Rights (the first ten amendments) were intended by the states to clearly delineate respective powers in the contract, thereby striking that harmonious balance which would preclude disorder and disunion.
In the 18th century, Nathaniel Ames of Massachusetts observed, “The state governments represent the wishes and feelings of the people. They are the safeguards and ornament of our liberties–they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.” Well, that was the idea anyway. Unfortunately, passage of the 17th Amendment seriously impaired the ability of states to check federal power. Effectively eliminating the framers’ mechanism for ensuring the states’ direct representation and influence in the Senate, for all intent and purposes the US of A, that well-crafted constitutional republic it was originally designed to be, was suddenly and unceremoniously transformed into an unwieldy representative democracy and the balance of power has, since then, dramatically shifted to the federal government. Repealing this ill-conceived amendment should be a top priority of the states.
And no discussion about nullification can ignore the “supremacy clause” (Art VI), the latter which is so relentlessly and mindlessly touted by modern liberal adherents who mistakenly believe that it constitutionally negates all state authority and any inherent state right to nullify or secede. Incredibly, what nullification detractors continue to conveniently and dishonestly ignore is the actual wording of the clause: “This Constitution, and the laws which shall be made in pursuance thereof…shall be the supreme law of the land.” The clause in no way, shape or form unilaterally grants supremacy to the federal government in all matters of law, but only those laws enacted which fully comport with its enumerated powers. For all practical purposes, therefore, the states too, as parties to the constitutional contract, enjoy supremacy in their sphere of authority. Thus, in all cases it is within the implicit and expressed power of the states to determine whether or not a federal action is constitutional.
Finally, I have to say that every time I delve into this compelling subject I am further convinced that civil disobedience, nullification and secession are absolute rights which no power on earth can rightfully deny us. And drawing upon the best minds in our history, my conclusion is inescapable: the only effectual means of ushering in a cultural rennaissance in America and of restoring constitutional order is by enough Americans becoming actively engaged in changing the system from within, failing which we must be unyielding in our resistance to cultural and political stagnation even if it means nullification or even secession. With nearly 46% of the electorate either functionally illiterate or simply brainwashed, our work is cut out for us. Going forward, there can be no compromising on constitutional principles with the Executive, the Congress and most certainly not with an increasingly renegade federal judiciary upon which Progressives have so successfully relied to undermine the Republic. And with a GOP machine habitually inclined to compromise the party’s conservative principles, the challenge is all the greater. To prevail and to reverse our society’s headlong and irretrievable collapse into the quagmire of socialist tyranny, we must be tenacious, assertive and true to ourselves and to the Constitution of the United States. Nothing else will work.
“Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselve into a state of war with the people, who are thereupon absolved from any further obedience.” John Locke, 1690
“A patriot must always be ready to defend his country against his government.” Edward Abbey
“The preservation of the sacred fire of liberty and the destiny of the republican model of government are justly considered as deeply, perhaps as finally, staked on the experiment entrusted to the hands of the American people.” George Washington, 1789
“Whenever the people are well-informed, they can be trusted with their own government; whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights.” Thomas Jefferson, 1789
“We are now trusting to those who are against us in position and principle, to fashion to their own from the minds and affections of our youth…This canker is eating on the vitals of our existence, and if not arrested at once, will be beyond remedy.” Thomas Jefferson, 1821
Jim Delaney writes for the New York Tenth Amendment Center from Rochester-Greece, and maintains the blog, Opinerlog.
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