Cross posted from the Pennsylvania Tenth Amendment Center.
As I have noted in earlier articles, my background is in mathematics and in Information Technology. To put it colloquially, I’m a geek. Before starting with the Tenth Amendment Center, getting involved in politics was just about the last thing I would have ever imagined myself doing. I would very much prefer to let the political scientists and the lawyers handle government, while I stay locked in the basement office with my pot of coffee and my ones and zeros.
But here’s the thing….
The lawyers who have been running the show over past decades have made a mess of things. A big, awful, nasty, mess. If some of us don’t get out of our comfort zones and do things we weren’t really prepared for or expecting to do, the freedom and prosperity from America’s past will just be a history lesson for our children.
As I noted in When Commerce is not Commerce, these clowns have been telling us for seventy years that an activity is subject to regulation as interstate commerce even when it is neither commerce nor interstate. The logic of this claim is farcical on its face. If the power to regulate wheat grown on a farmer’s own property falls under commerce “among the several states”, then surely the power to regulate wheat in Australia falls under commerce “with foreign Nations”. Is it absurd to claim that the Congress has authority to regulate wheat grown and used in Australia? Yes, but no more so than to claim authority over wheat grown and consumed on a farmer’s property in Pennsylvania.
In June, they took it a step further when they carved out a new power to compel us to purchase health insurance and called it a tax. Well – I am not going to play the lawyers’ games. Forcing someone to buy a product from a private company is not a tax, and growing grain on my own property to feed to my own livestock is not interstate commerce. It’s incredible to me that anyone would even try to make these assertions with a straight face!
A Rose by Any Other Name
When the federal government claims a power for itself that was never delegated by the states or by the people, what do we call it? The progressives would like us to call it “a living Constitution”. The lawyers would like us to call it “precedent”. Personally, I think that “usurpation” is the most accurate way to describe it.
I addressed the “living Constitution” in The Tenth Amendment Prohibited The Living Constitution, so I’ll only deal with this briefly. When the Tenth Amendment was ratified, the states were saying, “we know that there are other powers that we haven’t listed and haven’t even thought of. These powers are ours, not yours”. The Tenth Amendment, therefore, proves that the very idea of a living Constitution is unconstitutional.
What about precedent? Is precedent a logically valid reason for the federal government to exceed the powers which were delegated in the Constitution?
Proponents of allowing precedent to override the Constitution would claim that the rule of law requires us to follow past decisions, that reversing course would lead to chaos. I already showed, in Does Nullification Lead to Anarchy, that failure to follow the Constitution is actually the more chaotic path. After all, is it not plain that failure to follow the Constitution is a failure of the rule of law? When the federal government exceeds its Constitutional authority, it is de facto nullification of the Constitution. This sort of nullification may not lead to anarchy, but it does lead to tyranny.
Another argument arises from one of the most powerful lessons that I still remember from grammar school. The lesson was on the subject of compound interest (told you I’m a geek!). As you almost certainly know, compound interest is the practice of paying interest on interest for bank savings accounts. The amazing thing about compound interest is how fast the savings account grows in relation to an account with simple interest.
MoneySmartGuides.Com has this table which demonstrates the difference:
What the lawyers have managed to do, by citing precedent, is to create a legal equivalent of compound interest. For example, judicial errors in 1800 could be compounded by errors in 1803 and 1812 and so on. After a century or two, you’re left with a legal system that deviates far more widely from the Constitution than it would if the supreme court would just refer to the document itself for every single decision.
So, we are unpersuaded by the claim of precedent. We are unpersuaded by the claim of a living constitution. This leaves us with:
- The act of usurping, especially the wrongful seizure of royal sovereignty.
- A wrongful seizure or exercise of authority or privilege belonging to another; an encroachment
“A wrongful seizure or exercise of authority or privilege belonging to another.” Doesn’t this definition exactly fit the facts at hand when the federal government exercises a power which was reserved for the states? Regulating wheat that never leaves a private farm and calling it interstate commerce; mandating a private purchase and calling it a tax; this definition seems to be a perfect fit.
So, what do we do about it? Whatever you want to call it, there are two competing theories about how to respond to these power grabs. Theory one: vote the bums out. Theory two: Nullify.
In Vote the Bums Out is Not the Answer, I talked about the inadequacy of this theory as it pertains to the Patient Protection and Affordable Care Act. Let’s look at it in more general terms.
Falling back on my background as a geek, I know that when you are designing algorithms or proving mathematical theorems, you need to address the typical case, but you also need to address unusual cases. These include extreme cases and boundary conditions. In math, the extreme cases are often positive and negative infinity. Boundary conditions are usually positive one, negative one, and/or zero.
I’m not sure what the boundary conditions would be for our competing theories when dealing with usurpation, but it’s easy to imagine a multitude of extreme cases. In a recent Google plus conversation, I came up with one, as a thought experiment.
If 1.) The congress passes some indisputably egregious law, for example, to say that all residents of the mid-Atlantic states are to be imprisoned for the rest of their lives and must give their property over to the government, and 2.) the Supreme Court upholds this law as a valid exercise of the congressional taxing power in the Constitution. Then, should the executive branch enforce this law? Should the mid-Atlantic states act to prevent its enforcement inside their borders? Should the citizens resist?
If our theories fail under this extreme scenario, then they cannot claim to be valid. How does “vote the bums out” hold up in this extreme case? It strikes me as decidedly inadequate. It seems indisputable that in an extreme scenario like this thought experiment, nullification would be preferred over “vote the bums out”.
Know When to Say When
So the reality is that the only true question is when to use nullification? Certainly, it is justified in at least one extreme scenario (and many others that any of us can imagine). It is important, however, to be able to determine which scenarios justify nullification and which ones don’t. If we don’t have principled reasons for when to apply nullification but apply it in ad-hoc fashion, then it could actually be a lawless and chaotic formulation (as we saw in the south during the “Jim Crow” era).
I would suggest that there are two situations when nullification is the appropriate course of action. Both are described in founding era documents. The first guideline can be found in the Declaration of Independence:
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
When a law violates our natural rights, it is an exercise of unjust powers. In such a situation, nullification (and stronger measures) could be justified.
As regular Tenth Amendment Center readers know, a second scenario is detailed by Jefferson, Madison, and the respective legislatures of the Kentucky and Virginia Resolutions of 1798
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 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 party, 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 parties 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. (Kentucky Resolutions, November 10th, 1798)
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. (Virginia Resolution, December 24, 1798)
In short, when the federal government presumes to nullify any part of the Constitution, including the Tenth Amendment, the federal action is void. The Constitution, and laws in pursuance thereof are the supreme law of the land. Federal actions which violate the supreme law of the land are void. States should recognize these actions as void and respond accordingly.
Back to the Problem at Hand
While the examples of federal overreach beyond the limits of the Constitution are legion, the problem at hand is the Patient Protection and Affordable Care Act (PPACA). The question, then, is does the PPACA meet either of the two proposed nullification scenarios?
First, does the PPACA violate anyone’s right to life, liberty or pursuit of happiness? The answer to this question is a clear “yes”. The Independent Payments Advisory Board would presume to dictate who will receive potentially life-saving treatment, and who will die. This is an intrusion upon our right to life. The individual mandate is a clear violation of our liberty as expressed through our right to contract. The “reproductive health” provisions are also intrusions against our liberty as violations of conscience for many Americans.
Second, does the PPACA violate the Constitution? Chief Justice Roberts’ mental gymnastics notwithstanding, yes it does. Not only is the Individual Mandate not a tax, but even if it were a tax, it would still be unconstitutional because it is not apportioned among the states. Further, even should the individual mandate be a Constitutional use of the taxing power, there is still no power delegated in the Constitution for the federal government to spend money on health care or health insurance.
So, we must conclude that nullification of the PPACA is justified on grounds that it is a violation of our fundamental, natural law rights and also on the grounds that it is an unconstitutional action.
To express support for nullification of the PPACA in Pennsylvania, please sign our petition, here. To express support for this course of action in another state, please visit the Tenth Amendment Center and find the state chapter web site for your state.
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