Every once in a while I run into those who’ve given up on the constitutional system in America. They argue that the whole thing suffers from fatal flaws, and they will often quote Spooner to make their case.
“But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”
I understand the frustration, but I think those who make this argument miss an important point. They almost act as if the Constitution should enforce itself, or self-execute. They seem to think that because waving the document in front of rogue federal officials fails to compel them to stop usurping power, we should simply abandon the constitutional system altogether. But a contract doesn’t enforce itself. Some power must stand behind the ink and parchment to ensure compliance with its terms.
Even some who revere the Constitution make a similar mistake in thinking. They expect the federal government to restrain itself. They look to federal courts, staffed with federal employees, to limit federal power. Or they think if they can just get the “right people” inside the system, the “good guys” will keep everything in check. When these strategies fail, they protest and march. And when the federal officials ignore them and still refuse to respect the limits of their power, they throw up their hands in desperation.
Thinking an agent empowered by a contract will restrain himself doesn’t make much more sense than thinking that ink and paper will stop a rampaging bureaucrat. These folks create the classic “fox guarding the hen house scenario” and then can’t seem to fathom why the hens keep disappearing.
A power outside of the system itself must exist to hold it in check.
In the American constitutional system, the people of the states hold that power.
The real problem is that in most cases, the people fail to focus the power of the state or local governments to stop federal usurpation. In the few cases they have, such as the legalization of medical marijuana in 20+ states, it’s proven quite effective.
We just need more, and on more issues!
We call the process nullification, and James Madison gave us the blueprint for stopping federal overreach before the Constitution was even ratified. Madison acknowledged anti-federalist fears that the new general government would try to exercise undelegated powers. And he assured them that the power of the states could keep the tendency in check in Federalist 46.
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.
Let’s break down Madison’s prescription.
“Should an unwarrantable measure…” What does Madison mean by “unwarrantable?” The word literally means “unjustifiable.” Madison was clearly talking about federal acts with no constitutional justification. In other words, unconstitutional.
But notice something interesting, Madison implies that state governments can even resist a “warrantable” or justifiable federal act.
So what does Madison suggest states do when the feds overstep their authority?
“…the means of opposition to it are powerful and at hand.” Madison anticipated the possibility of federal usurpation and clearly believed the states would serve as a check on federal power. He believed the states should and would resist unconstitutional acts.
So, what are the “means of opposition?”
1. Disquietude of the people – This would include protests and petitions generated at the grassroots level. Madison expected the people would throw a fit when the feds usurped power – even using the word “repugnance” to describe their displeasure. That’s a pretty strong word. And inevitably, disquietude leads to action – first at the local level, then bubbling up to the state level. That leads to the next step.
2. Refusal to co-operate with the officers of the Union - Noncompliance. We preach it every day at the Tenth Amendment Center. Madison apparently knew what we know today. The feds rely on cooperation from state and local governments, as well as individuals. When enough people refuse to comply, they simply can’t enforce their so-called laws.
Consider 20 states operating legal medical marijuana programs. Sure, the feds can make some lives miserable with DEA raids, but no matter what they do, they will never get that genie back in the bottle. Legal medical marijuana is here to stay. A recent report shows the feds now labor with marijuana eradication in California because the state refuses to pitch in like it once did.
And Look at the feds struggling to implement Obamacare. Thirty states refusing to go along and set up the insurance exchanges threw quite the monkey wrench in the process. According to a Western Center for Journalism report, the GAO says vital parts of the computer systems running the exchanges remain unfinished. The government has no way to know who’s even eligible for federal subsidies, and no system exists to monitor insurance plans for compliance with the mountains of new regulations.
“It’s so complex and byzantine that the government is struggling to implement the law,” wrote Western Center for Journalism reporter Floyd Brown.
The GAO indicates the exchanges won’t be up and running by October as required by the law.
Noncompliance works. And it can happen at both the state and local level.
3, The frowns of the executive magistracy of the State - Here Madison envisions governors formally protesting federal actions. This not only raises public awareness; executive leadership will also lead to the next step – legislative action. Prior to passage of the Kentucky Resolutions of 1798, Gov. Garrard delivered a powerful message condemning the Alien and Sedition Acts and calling on legislative action.
4. Legislative devices, which would often be added on such occasions -What exactly does Madison mean by “legislative devices?” He doesn’t make that clear. But we know they include resolutions, because he and Thomas Jefferson penned the Kentucky and Virginia Resolutions in response to the draconian and unconstitutional Alien and Sedition Acts of 1798. Together, these Principles of ’98 formalize the doctrine of nullification.
But do legislative devices stop at non-binding resolutions? Clearly not, because Madison said these measures would create “difficulties” and “impediments.” Seventeenth century dictionaries list “obstruction” as a synonym for impediment. In other words, these legislative devices would serve to block the operation of unconstitutional power. This infers actions including formal, binding prohibitions of state or local cooperation, and outright interposition: “to intervene or place an agency between two positions.”
The personal liberty laws passed by northern states to thwart the Fugitive Slave Act of 1850 serve as the best historical example of “legislative devices.”
The Fugitive Slave Act of 1850 made a farce of due process, allowing for the arrest of a suspected runaway slave based on the word of the “property owner.” He simply had to swear an affidavit attesting to his “ownership” of the person in question, and he was allowed to drag that man or woman back South into slavery. The accused wasn’t even allowed to present evidence in his own defense. The act was meant to protect the “property” of slave holders, but many free blacks found themselves accused of escaping slavery and faced the prospect of living out their life on a plantation. And northerners understood that even an accused runaway should remain innocent until proven guilty, and enjoy basic due process rights.
Instead of simply submitting to federal authority and quietly participating in constitutionally dubious and morally repugnant fugitive-slave roundups, northern lawmakers aggressively resisted the fugitive slave acts. Officials in these states did everything within their power to thwart enforcement, including denying federal agents the use of jails, and even impeaching state officials who lent support to fugitive-slave claimants. The Michigan legislature passed a law guaranteeing habeas corpus rights and a jury trial to any accused runaway, all in defiance of federal “law.” Some states went as far as to subject anybody attempting to remove a accused fugitives from the state without following the prescribed state procedure to kidnapping charges. And there were documented cases of arrests of federal agents.
Madison said these actions would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.
Was he right? Well, northern resistance to the Fugitive Slave Act of 1850 was so effective, South Carolina listed “nullification” of the fugitive slave laws in its declaration of causes for secession.
Madison clearly expected the states to serve as a check on federal power. He laid out the blueprint. And when the people of states have followed it, they’ve found success. But sadly, states seldom follow Madison’s prescription. Why? Because the people don’t demand it. Too often, they grovel in marble hallways along the Potomac and beg federal officials to stop abusing their authority, instead of demanding that they stop. The power ultimately lies in us – the people.
We can’t blame the Constitution for our failure to enforce it.
Far too many Americans view any resistance to federal authority as rebellion. They need to recognize that the true rebels are elected officials, federal bureaucrats and functionaries in Washington D.C. who refuse to respect the constitutional limits of their power. It’s time for us to take on our proper role in this system and put down the rebellion.
As Madison said, the means are “powerful and at hand.”