Ultimately, the question boils down to the meaning of language in the Constitution’s Recess Appointments Clause.

Robert J. Natelson, legal professor and author of The Original Constitution, What it Actually Said and Meant, untangles these issues in an article to be published in Harvard Journal of Law and Public Policy titled The Origins and Meaning of ‘Vacancies that May Happen During the Recess’ in the Constitution’s Recess Appointments Clause.

The abstract describes the scope of the paper.

“There has been longstanding uncertainty about the meaning of ‘the Recess’ and close variants of  ‘Vacancies that may happen’ in the Constitution’s Recess Appointment Clause. This Article finds that both ‘the Recess’ and close variants of ‘Vacancies that may happen’ were standard terms in Founding-Era legislative practice, and appear copiously in legislative records.”

Natelson kicks off  the article by introducing the issues surrounding the case of Noel Canning.

Canning questioned the NLRB’s authority to issue orders on two constitutional grounds. First, he asserted that, “the Board lacked the authority to act for want of a quorum, as three members of a five member Board were never validly appointed, as they took office under putative recess appointments which were made while the Senate was not in recess.” Secondarily, he “asserted the vacancies these members purportedly filled did not ‘happen during the Recess of the Senate,’ as required for recess appointments by the Constitution. U.S. Const. art. II, § 2, cl. 3.”

Natelson goes on to outline the opposing positions taken on the issues controlling the case and discusses the contrasting findings from many differing sources.

“Among commentators, some have supported the opinions dominant among courts and Attorneys General, but most have supported the positions enunciated in Noel Canning,” he wrote. “The leading article on the subject, authored by Professor Michael Rappaport, concluded that, ‘the Recess’ includes only intersession breaks and the vacancy must arise during one of those breaks. In its opinion the appellate court relied heavily on this article.”

But Natelson’s paper focuses on founding-era writings from a pre-ratification constitutional time frame. He concurs with the Court of Appeals and the article authored by his colleague, Professor Rappaport, but his entire approach is to view the issue through the original understanding of the Constitution.

“However, all of this writing suffers from at least one weakness: the failure to marshal a significant amount of evidence arising prior to the Constitution’s ratification,” he wrote. “The disadvantage of omitting pre-ratification material should be obvious. Statements and practices arising after the ratification could not have been part of the original understanding. When post-ratification sources do shed light back into the tunnel of time, that light is usually weak and uncertain.”

Natelson begins his investigation by seeking out pre-ratification sources informing the founders’ understanding of the issue. He points out the framers did not invent the phrases, “the Recess” and “Vacancies that may happen” They were considered stock terms from legislative and government practice. The colonists’ political frame of reference was the British system,  in particular Parliament. Since most of the colonies were formed within the same basic framework, British legislative records serve as a good primary source.

Natelson next focuses in on the meaning of the “session.”

“The key to grasping the meaning of the phrase ‘the Recess’ is understanding how the founding generation understood the concept of a legislative session. The term originates from the Latin word ‘sedere’ or to sit. The British system considered a session of Parliament, ‘the season, or space, from its meeting to its prorogation or dissolution.’  Parliament began as a result of a call from the Crown, and the session began when the legislature undertook a formal act, and ended upon prorogation or dissolution. Prorogation was a procedure in which the King could terminate the session by a writ. Dissolution could be accomplished three ways, 1) the decision of the king, 2)the death of a king, 3) the expiration of the parliaments term of office, Prorogation or Dissolution terminated a session, while adjournment did not. In the colonies, the governor enjoyed the powers of initiating a session of an assembly and ending it with prorogation or dissolution.”

Next up is the phrase “the recess.” In common terms, when recess did not have “the” in front of it, it was considered a retreat, or remission from a procedure.  But those three letters, “the,” gave it a very specific meaning.

“It seems, however, that in government practice the phrase ‘the Recess’ always referred to the gap between sessions.”

He goes into great detail explaining differing clauses and what was or wasn’t allowed during “the Recess.” But the main point remains “the Recess”  was always understood as the gap of time between sessions, not a break within a session.

Finally, he takes on “Vacancies may happen.”

“The Constitution’s expression ‘Vacancies……happen’ was but one variant of a group of stock phrases employed in these provisions,” he wrote, adding that the majority of documents confirmed that “happen” always signified a discrete event. However, when legislators wanted to designate a continuing vacancy, the term “during the vacancy” was generally utilized.

Professor Natelson’s extensive research reveals  that both “the Recess” and similar varieties of “Vacancies that may happen” were standard terms in founding-era legislative use, and appear in many documents and records. These documents and records also advise us that “the Recess” was a term of art which meant the gap of time in-between sessions, and a vacancy “happens” when it first arises.

Most modern constitutional scholars approach the founding document as if it were surrounded by an impenetrable fog and act as if we simply cannot ever determine the original meaning. Natelson’s approach proves them wrong. His exhaustive research and meticulous scholarship pulls the intent of the framers and the understanding of the ratifiers into broad daylight. Madison asserted that the only basis for solid government rested on the original understanding of the Constitution.

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!”

Natelson’s work not only vividly illuminates the meaning of the Recess Appointments Clause, it charts the path judges should follow when determining constitutional issues.

Get the Book Today!

Robert G. Natelson, the author of The Original Constitution: What It Actually Said and Meant, is Senior Fellow in Constitutional Jurisprudence at both the Independence Institute in Denver, Colorado and the Montana Policy Institute in Bozeman, Montana. He was a law professor for 25 years, serving at three different universities. His biography and works are listed at http://constitution.i2i.org/about.

View the Noel Canning Court Decision

Vacancies that May Happen During the Recess by Tenth Amendment Center

Yet, mistrust of government is as old as America itself. America was born out of mistrust of government. The revolution that was fought in the 1770s and 1780s was actually won in the minds of colonists in the mid-1760s when the British imposed the Stamp Act and used writs of assistance to enforce it. The Stamp Act required all persons in the colonies to have government-sold stamps on all documents in their possession, and writs of assistance permitted search warrants written by British troops in which they authorized themselves to enter private homes ostensibly to look for the stamps.

These two pieces of legislation were so unpopular here that Parliament actually rescinded the Stamp Act, and the king’s ministers reduced the use of soldier-written search warrants. But the searches for the stamps turned the tide of colonial opinion irreversibly against the king.

The same king also prosecuted his political adversaries in Great Britain and here for what he called “seditious libel” — basically, criticizing the government. Often that criticism spread and led to civil disobedience, so the British sought to punish it at its source. The prosecutions were so unpopular here, and so contrary to the spirit of what would become the Declaration of Independence, that when the British went home and the Framers wrote the Constitution and the Bill of Rights was added, the First Amendment assured that the new government could not punish speech.

Yet barely 10 years into “our brave, creative, unique experiment in self-rule,” in the infamous Alien and Sedition Acts, Congress at the instigation of President John Adams criminalized free speech that was critical of the new government.

How did it come about that members of the same generation — in some cases the very same human beings — that declared in the First Amendment that “Congress shall make no law … abridging the freedom of speech” in fact enacted laws that did just that?

As morally wrong, as violative of the natural law, as unconstitutional as these laws were, they were not historical incongruities. Thomas Jefferson — who opposed and condemned the acts (he was Adams’ vice president at the time) — warned that it is the nature of government over time to increase and of liberty to decrease. And that’s why we should not trust government. In the same era, James Madison himself agreed when he wrote, “All men having power should be distrusted to a certain degree.”

The Alien and Sedition Acts were but the beginning of a long train of government abuses visited upon people in America as a consequence of the “experiment in self-rule.” I am not quoting Obama’s Ohio State speech to nitpick, but rather to establish a base line for my argument that he rejects core principles and historical lessons and, most troubling, the natural law itself when he opines that government should be trusted because it has gained power via self-rule.

Self-rule alone is hardly a basis for governmental legitimacy, unless it is accompanied by fidelity to the natural law and to the rule of law.

Get the book here

The rule of law here means fidelity to the Constitution, that all laws are just and apply to everyone, so no one is excused from obeying the laws and no one is excluded from their protections. Yet, self-rule here has been unjust and has brought us the tyranny of the majority. And that tyranny has brought us slavery, unjust wars, Jim Crow laws, domestic concentration camps in wartime, slaughter of babies in the womb, domestic spying without search warrants, torture and death by drones — just to name a few.
The reason Obama likes government and the reason it is “a dangerous fire,” as George Washington warned, and the reason I have been warning against government tyranny in my public work is all the same: The government rejects the natural law because it is an obstacle to its control over us. The natural law is divinely embedded in our souls. It is manifested by the universal yearning for freedom and justice. It consists of areas of human behavior — thought, expression, religion, self-defense, travel, acquisition and use of property, privacy, for example — in which our behavior is subject only to the exercise of our free will and not the permission of our neighbors or regulation by the government. The natural law, properly understood, is a restraint on the government.

Yet, government in America — whether it consists of Congress protecting the slave trade, or John Adams or Abraham Lincoln or Woodrow Wilson prosecuting political speech, or FDR incarcerating Japanese-Americans, or George W. Bush promising immunity for torturers and domestic warrantless spies, or Obama killing whomever he chooses with drones — has never hesitated to reject the natural law. All of these violations of the natural law were approved by the majority when undertaken. The government’s persistent and systematic rejection of the natural law is alone sufficient to mistrust government and reject Obama’s Ohio State advice.

The government that has come about by self-rule derives its powers from the consent of the governed. Because the tyranny of the majority can be as dangerous to freedom as the tyranny of a madman, all use of governmental power should be challenged and questioned. Government is essentially the negation of liberty. If we fail to challenge government at every turn, there will be no liberty remaining for us to defend when the government tries to negate it.

Sometimes, support for state action to block unconstitutional acts springs up in the most unlikely of places. Take this gem from a former Washington D.C. prosecutor who admits he “just about always sided with the United States in circumstances in which the states have tried to preempt the federal government.” Jeffery Shapiro agrees that states should not enforce any federal acts violating the Second Amendment.

“For once, I’m inclined to side with the states on this matter — at least in spirit, since I know many of the federal laws being proposed by the Democratic Party are unconstitutional.”

There you have it! A prominent D.C. insider, and a former federal employee to boot, acknowledging states should work to thwart unconstitutional federal acts.

Of course, Shapiro’s logic quickly goes off the rails. He predicates his support of nullification efforts on the fact that the Supreme Court has ruled federal firearms laws violate the Second Amendment.

“States may not have a legal basis for enforcing the new nullification laws, but technically they are right that any attempt by the federal government to disregard the U.S. Supreme Court’s ruling in Heller or MacDonald is unconstitutional and should not be enforced.”

So basically, Shapiro only supports nullification if Supreme Court opinion provides the basis for declaring an act unconstitutional. Still, we’ll take what we can get. Here we have a federal supremacist at least acknowledging the limits of federal power AND offering tacit support to the idea of states serving as a check on overreaching DC’vers.

That’s good stuff!

Now if we can just take Shapiro the rest of the way and get him to recognize that five black-robed federal employees rubber-stamping an act in clear violation of the Constitution doesn’t magically make that act constitutional. On this subject, we have a way to go.

Any law, whether state or federal, must comply with the Supreme Court; otherwise, we compromise our entire system of checks and balances and the Separation of Powers doctrine that dictates the branches do not overstep one another’s function. Nullification laws are not necessary. The White House and Democratic Senate simply needs to comply with the court and the Constitution of the United States of America.

Maybe he should read my Nullification for Lawyers article.

I suppose, in a perfect world, we could count on the federal government to limit its own power through its courts. But gazing back over 200 years of history makes it clear we don’t live in a perfect world. If we take Shapiro’s argument to its logical conclusion, there was a time when free black men and women really weren’t citizens and northern states were absolutely wrong in trying to prevent black citizens from being dragged South into slavery with no due process under the Fugitive Slave Act of 1850. Both of those scenarios existed as Supreme Court approved law of the land, after all.

If Shapiro really believes in the limited nature of the federal government, he can’t believe that the Supreme Court makes the exclusive and final determination on the extent of those powers. Simply put, if federal courts are the final authority on federal powers, that power is unlimited. The Constitution doesn’t authorize this.

Get the new book today!

Jefferson obliterated the nonsensical notion that the federal government decided the extent of its own power.

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 powers 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.

So nullification is absolutely necessary, as James Madison pointed out.

Dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.

“However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.

But even with his blind faith in federal self-limitation, I see a lot of hope in Shapiro’s support of state efforts to block violations of the Second Amendment. He acknowledges the state role in checking federal power, and that counts as a big step in the right direction.

Boston took an early lead, at least in the Police State category, as evidenced by the quick and efficient militarization of that city in pursuit of a Chechen teenager. Philadelphia, not to be outdone, gave us State Senator Anthony Williams, who on Monday attempted to douse the flame of liberty with the foul water of unlimited central government.

In response to the growing support for Pennsylvania House Bill 357, a bill intended to nullify new federal firearms laws, Sen. Williams circulated a garbled letter to the members of the General Assembly that patched together an ahistorical (that means ‘not historical’, Anthony) attack against state nullification. Or as the senator rather uniquely put it, “the rising, and disturbing, national cognitive capture of nullification.”

Williams’ letter begins with a head-scratching dichotomy.

The history and heritage of this great nation long has included a constant and vigilant dance between preserving individual freedoms and advancing social harmony.

After staring at a blank wall for some minutes, I could not think of one individual freedom, which, if curtailed, would actually advance social harmony. Try this at home: what violation of the non-aggression principle would result in greater social harmony? If you think of an example, post it below.

To Williams’ credit, except for the resulting non sequitur, he is on firm ground in his second paragraph.

My hometown birthed the Declaration of Independence, Articles of Confederation, and U.S. Constitution, including the sacred Bill of Rights…especially the Second Amendment… We hold this sacrosanct.

And then he completely loses it.

The language and spirit used [in HB 357] hearken not toward the brighter paths of Revolutionary America, but the darker shades of Antebellum America.

I invite you to read the full text of HB 357 here. First, let’s consider Williams’ “brighter paths.” The historical record would strongly suggest that the colonists – at least those who fomented revolution – weren’t big fans of taxes and centralized government. HB 357 is a push back against the unconstitutional overreach of federal firearms laws. Williams has it backwards. Next Williams absurdly attempts to tar HB 357 with the “darker shades of Antebellum America.” By “darker shades”, I presume Williams means slavery. I re-read HB 357 for the 357^th time and, as you may have guessed, it has exactly zero to do with putting folks back into slavery. Perhaps Williams’ rhetoric is an attempt to associate state nullification with slavery. Again, the historical record is crystal clear, but not the way Williams wants you to believe. State nullification, in Pennsylvania and other states, was a successful tool used by abolitionists against the federal Fugitive Slaves Acts, and as regular readers of TAC know, was one of the main reasons slave-owning states wanted to bolt from the Union.

After Williams is finished making up fake histories of the United States in an attempt to discredit state nullification, he devolves into wild accusation.

It’s also why it’s ludicrous, if not embarrassing, that we are advancing any of sort of legislation that seeks to erode our allegiance to our nation and its operation.

In other words, fellow citizen, shame on you for putting your gun rights over the prerogatives of government bureaucrats. Because, you know, blind allegiance to government is what makes us free. Not.

Williams then presents a nonsensical and ahistorical view of the supremacy clause.

Being part of the United States of America means we agree to being bound by federal laws set forth, whether our ideals are aligned with or repudiated by said laws. This is the essence of supremacy clause. … When the socially disgruntled of the past have promoted “nullification” as a viable means of refuting and flouting the law of the land, the U.S. Supreme Court, the final arbiter of constitutionality, has roundly rejected time and time again this assertion.

The supremacy clause is the last refuge of the federal supremacist. But to make it work for their arguments, they have to willfully misread it. Only laws “which shall be made in Pursuance thereof” are supreme, not any old laws passed by Congress. As Alexander Hamilton noted in Federalist #33: “Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution.”

And nowhere in the Constitution is the federal Supreme Court given power to nullify unconstitutional laws, not laws of its own government or laws of the states. In fact, the dude who wrote the Constitution, James Madison, had a much different take on who was the “final arbiter of constitutionality”:

The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.     (Virginia Report of 1799-1800)

Williams concludes his polemic by calling nullification a “Pandora’s Box” that threatens to drag Pennsylvania backward. If backward means restoring individual rights that are under constant assault from federal supremacists like Williams, then backwards I be. Or you can go follow Williams, straight into liberty’s grave.

ACTION ITEMS for Pennsylvania:

1. Please contact your state representative.  First check the link for the following representatives who are co-sponsors to the bill. The most updated list of cosponsors are on the website to House Bill 357 can be found here. If your representative is not listed, please contact them and ask them to cosponsor HB357.   If they are, thank them for supporting the bill and encourage them to stand strong.

Contact information here:
http://www.legis.state.pa.us/cfdocs/legis/home/member_information/contact.cfm?body=H

2. Encourage your local community to take action as well.  Present the2nd Amendment Preservation Act to your city county, your town council, or your county commissioners.  Various local governments around the country are already passing similar resolutions and ordinances.  Local legislative action is a great way to strengthen a statewide campaign against 2nd Amendment violations

model legislation here:
http://tenthamendmentcenter.com/2ndamendmentpreservation/

3. Get connected to what is happening in Pennsylvania on Facebook. Like and get active on the Pennsylvania Tenth Amendment Center Facebook page. Also join the Second Amendment Preservation Act of Pennsylvania Facebook page here: http://www.facebook.com/groups/2ndAmendmentPA/

4.  Share this information widely.  Please pass this along to your friends and family.  Also share it with any and all grassroots groups you’re in contact with around the state.  Please encourage them to email this information to their members and supporters

Pennsylvania State Senator Anthony Williams Sends Letter to Colleagues Attacking Nullification Efforts by Tenth Amendment Center

What does poisoning a goldfish to get revenge on a cheating spouse have to do with the President’s power to make treaties? The constitutionally correct answer is: Nothing at all. Unfortunately, that’s not how the Obama Administration sees it. The Administration is claiming power to get into a domestic dispute under the authority of a chemical weapons treaty. And it is aggressively advancing the proposition that Congress’s power is essentially unlimited when based on the treaty power.

The federal government has been prosecuting Carol Anne Bond for causing minor burns to the fingers of her husband’s girlfriend after spreading a caustic chemical used in developing photographs around her home. Ms. Bond has fought the prosecution by arguing that the Constitution gives power over such domestic disputes to the States.

According to the U.S. Court of Appeals for the Third Circuit, Congress implemented a chemical weapons treaty by enacting a law that expands the treaty’s purpose and turns “each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.” In an earlier phase of the litigation, Justice Samuel Alito asked, “Suppose that the Petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend’s goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn’t it?”

In support of Ms. Bond’s argument that the federal government has overstepped its constitutional powers, the Goldwater Institute filed an amicus brief before the U.S. Supreme Court in Bond v. United States of America. Our brief warns that if courts allow Congress to implement treaties without respecting the Tenth Amendment’s limitation on federal power, there is nothing to stop the federal government from using international agreements and legislation to displace other constitutional guarantees. This is because the vertical separation of powers between the states and the federal government is not a second-class constitutional protection.

Allowing a treaty to undermine the Tenth Amendment opens the door to Congress enacting treaties that violate all constitutional protections – including the freedom of the press and the right to due process. That is why the Court must draw a bright line at kitchen cupboards and cleaning cabinets.

Ms. Bond won the first round when the Supreme Court reinstated her Tenth Amendment defense after the lower court rejected it on procedural grounds. Her case then returned to the lower courts, only to result in the Third Circuit rejecting her defense on the merits. Now the Supreme Court gets the last word. Hopefully, the Court will hold the line.

Originally published at the Goldwater Institute and reposted here with permission from the Author.

Bond v United States: Amicus Brief by Nick Dranias, Goldwater Institute by Tenth Amendment Center

As it typically goes, the Nullification Crisis is described as the origin of nullification. In 1832 the state of South Carolina passed a “nullification ordinance” which sought to block a tariff that was harming trade for the Palmetto State. Our Betters typically see fit to remind us that the ordinance failed after president Andrew Jackson threatened to invade the state.

The lesson we’re apparently supposed to take away is that might makes right, and that when a dispute arises, whichever side can intimidate the other into submission has the moral high ground. What’s conveniently left out from these little nuggets of Official History is that before South Carolina could call Old Hickory’s bluff, the tariff was reduced. Note also, that nullification predates this episode by more than thirty years. Indeed, it was in the prior century that states first began to push back, at the suggestion of Thomas Jefferson.

Speaking of might making right, there’s the War Between the States. It’s often associated with nullification as well, pejoratively. This is indeed peculiar, since it was northern states which nullified federal law and not the south, as so often is reported. If you’re slightly puzzled as to why this is supposed to be a mark against nullification, don’t worry, you’re not alone.

Even though the argument makes no sense logically, it is invoked as an easy way of introducing race relations where it otherwise doesn’t fit. It’s the nuclear option for charlatans, who’s only hope is ad hominem.

Then there’s desegregation. Lest I fall victim to the fallout from some sophist wielding epithets of “racist,” allow me to point out while race is involved in this issue, for the purposes of arguing over nullification, it’s quite irrelevant. For a more thorough explanation, see here.

This is the end of the road for nullification, to hear its deniers tell the story. A bunch of southerners in various legislatures tried to ignore the opinion of the court regarding Brown v. Board of Education, so the court issued another opinion indicating that in fact, the original ruling must be complied with. Instead of throwing down the gauntlet, those states acquiesced.

Big deal. All it proves is that on this particular issue, the court’s opinion prevailed. Appealing to the court’s opinion on any issue involving nullification as proof that it’s not allowed is begging the question. The essence of nullification is that the states don’t care what’s allowed and what’s not; they’ll decide the matter and any panel of lawyers is irrelevant.

As we’re seeing, nullification is a more powerful tool now than ever. At its inception two states used it for a single purpose — opposition to the Alien and Sedition Acts. Since then a handful of states have used it for various purposes, among them opposition to war, kidnapping and slavery, and integrating government schools. A halfway decent record, I suppose.

Become a member and support the TAC!

Today it’s being actively used by dozens of states to block everything from national ID cards and weed laws, to civilian gun control and indefinite detention. Nullification is blocking implementation of the Affordable Care Act in some states, and bills to block the TSA and prohibit the use of drones domestically are making their way through state houses as I write.

Not only is nullification being used, it’s widely accepted by the general public as a means to limit the power of the federal government. This information isn’t hard to come by, either. Wikipedia’s entry for “nullification” neatly explains each of those three misconceptions mentioned above, and links to additional information are there for anyone halfway interested.

So for those looking to dismiss nullification on historical grounds, have at it. Just make sure you check the Internet before submitting something that is easily contradicted with a cursory reading of “the free encyclopedia.”

This according to the keepers of acceptable opinion at two divergent publications.

Both The Economist and the Montgomery Advertiser recently ran opinion pieces skewering nullification, specifically state efforts to block unconstitutional federal gun laws in Kansas and Alabama. Interestingly, both the author of  The Economist piece and the editorial board over at the Alabama newspaper used the same strategy. They both try to make their readers believe anybody who actually views nullification as legitimate must not be too bright. Their implication? “The federal government enjoys absolute supremacy and  a bunch of dumb racist, rednecks who don’t know anything about the U.S. government want states to ignore laws they don’t happen to like.”

From the Economist: “It is remarkable that a civics lesson like this is necessary.”

The Montgomery Advertiser editorial board gets even snarkier.

“That body (the Alabama Senate) has taken a plunge into the past by revisiting and embracing the long-discredited practice of nullification, the notion — abandoned decades ago by most people who passed sixth-grade civics.”

Talk about groupthink. Federal supremacists apparently find the whole “civics lesson” theme clever. I have to admit – it does effectively create the impression that nullification supporters wander around in ignorance among the illiterate and uneducated. But the mockery would prove even more effective if the writers actually knew what in the hell they were writing about.

Here’s the problem: these amateur historians actually think the three things they leaned in their government school sixth-grade civics class make them some kind of experts. They might want to move on from pre-civics to basic civics before they try demeaning those of us who actually know the historical and the philosophical basis for nullification.

Let’s touch on a few basics, shall we?

1. Federal Supremacy – These wanna-be historians actually think the federal government stands absolutely supreme all the time, no matter what. They apparently never bothered to  put down the sixth-grade textbook and read the actual supremacy clause in the Constitution. If they did, they would find that only acts “in pursuance of” the Constitution stand supreme. Yes Virginia, federal supremacy actually has limits! Alexander Hamilton made this clear in Federalist 33.

“If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed….But it will not follow from this doctrine that acts of the large society which are  not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made  pursuant to the Constitution.”

2. The extent of federal power – While we’re on the subject of limits, our civics professors apparently need a reminder. The federal government can’t just do whatever it wants. It operates under strict limits. The feds can only exercise powers delegated to it in the Constitution.  James Madison described the extent of federal power in Federalist 45. He insisted that the powers delegated to the general government were “few and defined,” and those left to the states and people were “numerous and indefinite.” The ratifiers even insisted on a Bill of Rights “in order to prevent misconstruction or abuse of its powers.”

3. Who decides constitutionality? - Federal supremacists sell you a load of crap. They want you to believe the people of the states created a federal government with limited, enumerated powers, insisted on further “declaratory and restrictive clauses” – the Bill of Rights -   and then left it to that government to decide the extent of its own power. This idea not only earns them an F on their civics test, they also fail their logic test. Basically, these geniuses want the Dallas Cowboy player to referee the Dallas – New York Giants football game. How do you think that would turn out for the Giants?

Fact: the  people of the states created the federal government in the first place. Therefore, the people of the states retain the right, in the last resort, to determine the extent of the powers they gave to the government they created. So yes, Kansas can determine what limits the Second Amendment places on federal regulation of firearms. Granted, this idea may fall into the realm of advanced civics, so maybe we should let a real expert explain it. How about we call on Madison, the “Father of the Constitution?”

“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”  

Extra reading HERE.

4. Separation of powers - Even our journalists with their  sixth-grade civics background probably remember separation of powers. If you ask them, they will tell you about the three separate branches – executive, judicial and legislative – and how they serve as a check on each other. What seems to escape our intellectual elite is the fact that these three branches all belong to a single entity – the federal government. That raises an interesting question that Madison asked some 200 years ago. What happens in “those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. ” In other words, what happens when all three branches conspire to exercise undelegated powers?

In sixth-grade civics world, apparently nothing.

Again, these federal supremacists sell a crock of smelly stuff. They want you to believe that a government can exist as a self-limiting institution. That being the case, why did the founders  go to all the trouble to create checks an balances WITHIN the federal government? Doesn’t it logically follow that some check on federal power in general must exist?

Uh, yeah. The branches of government serve as horizontal checks on power and the states serve as vertical checks on federal power. During the ratification debates, anti-federalists insisted the federal government would not remain constrained to limited, enumerated powers as supporters of the Constitution promised. Madison argued that the states would serve as the check.

“Should an unwarrantable measure of the federal government be unpopular in particular State…the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”

Madison’s blueprint  sounds an awful lot like nullification, doesn’t it? Kansas says it refuses to cooperate with acts violating the Second Amendment. Alabama say it refuses to cooperate with federal acts violating the Second Amendment. Maybe Madison needs to take that sixth-grade civics class these guys talk about.

5. The Second Amendment – Even without the Second Amendment, the federal government still would not have the authority to regulate gun ownership within the borders of a state. The Constitution does not delegate that power to the federal government; therefore it remains with the states and the people. Secondly, the language of the amendment itself defines much greater restriction on federal power. “The right of the people to keep and bear Arms, shall not be infringed.” (Infringe – v: Act so as to limit or undermine something; encroach on, block.) The federal government may not constitutionally act in a way that limits the right to keep and bear arms – period – even when exercising a valid constitutional power. So even though the federal government has the authority to regulate interstate commerce, it doe NOT have the authority to infringe on the right to keep and bear arms in the process.

Get the new book today!

6. Extra Credit - John Calhoun didn’t come up with nullification prior to the Civil War to support slavery, or even to oppose a tariff. He didn’t come up with it at all. James Madison and Thomas Jefferson get the credit for formalizing the principles of nullification in 1798, in response to the Alien and Sedition Acts.

Nullification wasn’t used in defense of slavery. Not ever. In fact, northern states appealed to the principles when blocking the Fugitive Slave Act of 1850. It was so effective, South Carolina listed “nullification” of the Fugitive Slave Act in its Declaration of Causes for Secession. (Which kind of punches a big huge hole in the “nullification has never worked” talking point parroted by federal supremacists.)

Yes, Andrew Jackson opposed nullification. So what? He uses the same lame arguments federal supremacists today use. They were just as lame in the 1820s and 1830s.

Sadly, tomorrow I will run across some  other pseudo-historian repeating the same false “facts” about nullification, acting all intellectually superior. These people continue to run around and act like counter arguments to their tripe don’t exist. But they clearly do. These folks just need to start reading outside of that sixth-grade civics book.

Class dismissed!

To no one’s surprise (least of all to the architects and builders of the already sprawling surveillance state), the letter addressed to Senator Harry Reid (D-Nev.) reports that in 2012, of the 1,789 requests made by the government to monitor the electronic communications of citizens, not a single one was rejected.

That’s right. The court, established specifically to judge the merits of applications by the government to spy on citizens, gave a green light to every government request for surveillance.

Not content to be a mere formality for electronic surveillance, the FISA court (officially called the Foreign Intelligence Surveillance Court) also held the coats of the FBI while that agency carried out the searches and seizures set out in 212 applications.

Why should liberty-minded Americans be disgusted by the data reported in this letter? Commentary from Glenn Greenwald of The Guardian (U.K.) points to several good reasons. Greenwald writes:

What makes all of this worse is just how extreme the US government is “interpreting” — i.e. distorting — its eavesdropping powers under the law. Two Democratic Senators, Ron Wyden and Mark Udall, have been warning for years that the Obama administration is exploiting these laws in ways far beyond what the public knows or what a reasonable reading of the laws would permit. One of the nation’s most knowledgeable surveillance experts, Julian Sanchez, has documented — citing the writing of a former Obama lawyer — that the law is used to target even “an American citizen located within the United States, and no court or judge is required to approve or review the choice of which individuals to tap”: exactly the type of warrantless surveillance we were all told this law would prohibit. And yet, the Fisa court — even for those narrow set of cases where a warrant is required — continues as it always has: rubber-stamping virtually anything and everything the government wants to do.

Perhaps the most disturbing effect of these FISA court figures is the fact that the government considers the protections of the Fourth Amendment to be nothing more than a “parchment barrier” that is easily torn through. Now that the Constitution is regarded by the federal government as advisory at best, there is nothing standing between the citizens of this nation and the construction of a 21st century panopticon.

In this country, then, every citizen is now a suspect and the scope of the surveillance is being expanded to place every word, every movement, every text, every conversation, every e-mail, and every social media post under the never-blinking eye of the federal domestic spying apparatus.

The hour is now late if this Republic is to remain a land under the rule of law. To that end, it is critical that Americans recognize that the FISA court’s rubber stamping of the exercise of such sweeping surveillance programs is in direct, open, and hostile violation of the Constitution. The Fourth Amendment to the Constitution clearly states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

On the possible repercussions of this non-existent oversight, Greenwald again strikes a sobering note:

This is significant not only because it means there is no real check on the government’s surveillance power, even as they exercise those powers in much broader ways than most people suspect. It’s also significant in light of recent calls that a “drone court” be created that would provide for a similar process for the president’s desire to target for execution people who have been charged with no crime.

During the confirmation hearing for CIA director nominee John Brennan, senators discussed the establishment of a federal courtwith jurisdiction over the president’s death-by-drone program. As proposed by lawmakers, the so-called “drone court” would be tasked with approving the targeting (and, by extension, the assassination) of people on President Obama’s or the CIA’s respective kill lists.

Senator Dianne Feinstein (D-Calif.), chairwoman of the Senate Intelligence Committee, said during Brennan’s hearing that she was considering “legislation to ensure that drone strikes are carried out in a manner consistent with our values, and the proposal to create an analogue of the Foreign Intelligence Surveillance Court to review the conduct of such strikes.”

The plan was seconded by Senator Angus King (I-Maine), who said at Brennan’s hearing that he would support a drone court that would rule on requests by the executive branch. He posited that the drone court hearings would be carried out “in a confidential and top-secret way,” giving the White House the opportunity to “make the case that this American citizen is an enemy combatant.” He sees that process as “at least … some check on the activities of the executive.”

Although certainly not one to recognize checks on the executive, the White House indicated several months ago that it would entertain any legislative proposal for the establishment of such a tribunal. An Obama administration official told Reuters early this year, “The White House has been discussing various ways there could be independent review of counterterrorism actions for more than a year.”

In a press release issued in February, Senator King announced that he had sent a letter to Senators Feinstein and Saxby Chambliss (R-Ga.), chairwoman and vice-chairman of the Intelligence Committee, to consider a bill creating the new court.

King wrote, “As the Committee begins preparing the Intelligence Authorization Act for Fiscal Year 2014, I ask that you work with me to contemplate legislative solutions, such as the creation of an outside judicial process similar to the FISA court, that might provide an independent perspective in the distinctive case of a U.S. citizen who is a senior operational leader of al Qaeda.”

According to comments made by “congressional aides” cited in Reuters, “discussions are at a preliminary stage.” They also reportedly said that several similar proposals made by legal experts were being kicked around on Capitol Hill.

Although plans for the functioning of the court are at the sketch stage at best, much of what is being discussed sounds very similar to the Star Chamber, an English court of the 14th to 17th centuries that met in secret, with no record of indictments, no identification of witnesses, and no transcript of the proceedings.

Eventually this court was used as a political weapon, a way for the king and the Parliament to persecute their enemies and keep the dirty details hidden from the public.

The analogy of the FISA court’s absolute approval of requests by the government to monitor citizens’ electronic communication to the decisions of the Star Chamber is apt and accurate on many points.

Additionally, it is more than a little likely that a “drone court” would mimic the porous procedural path of the FISA court and serve as no check whatsoever on government deprivation of the rights formerly protected by the Fourth Amendment.

Originally published in The New American.

This bill is so good that the George Soros-funded ThinkProgress.org has been attacking it as “an insidious new form of Obamacare nullification.”

That should be a huge green light for Obamacare opponents to support South Carolina H3101 and replicate it in their own states.

WHAT YOU GET PASSING THE BILL

– Exchange: Banned
– Keep Your Money: Kill the Mandate
– Increases executive power to “interpose”
– Political Mechanism for future actions
(determining future provisions unconstitutional and unenforceable) 

What you get if H3101 Dies 

– Pay that mandate penalty.  It’s coming
– Expect an SC exchange further helping Obamacare nationally
– No mechanism  to do anything in the future

DIGGING DEEPER  

1. H3101 specially bans creation of an exchange.  The bill prevents all state and local governments from establishing an exchange under Obamacare.  It prevents them from participating in an exchange or purchasing insurance from one.  It makes any insurance contracts “purchased or established in violation” of that part of the law void and unenforceable by the courts of the state.

CATO institute Obamacare expert Michael Cannon explains the power of rejecting the exchanges in his publication, 50 vetoes.  When enough states take just this step, Obamacare would be likely to crumble.  READ IT HERE

2. H3101 crushes the individual mandate.    The legislation provides for a state tax deduction in the amount of any mandate penalty that the IRS may issue.  In other words, don’t follow the mandate.  You can keep your money and you won’t be getting coerced.  While a deduction won’t help you recover all the money the IRS has taken from you, the amount is still worthy of note, and will act as a significant motivator for many people to simply ignore the mandate. The Soros-backed ThinkProgress is VERY upset about this part of the bill, because they know that if people don’t participate in the mandate, the federal act is done for.

3. It bans the state from participating in unconstitutional provisions of Obamacare and by default creates a political mechanism for the state to make that determination.  The ban is spelled out in Section 2 of the legislation and would be amended to be part of the state code.  It reads, “No agency of the State, officer or employee of this State, acting on behalf of the state, may engage in an activity that aids any agency in the enforcement of those provisions of the Patient Protection and Affordable Care Act of 2010 and any subsequent federal act that amends the Patient Protection and Affordable Care Act of 2010 that exceed the authority of the United States Constitution.”

The policy intent of the legislation creates an atmosphere for follow up legislation to declare additional provisions to be unconstitutional which would require, by H3101, that they shall not be enforced.   It’s going to take work over time.  But Rome didn’t fall in a day – and stopping Obamacare will certainly not happen with just one state bill.

4. It increases the ability of the State executive to interpose and refuse to enforce.   Section 1 of the bill includes a number of statements that are not amended into the State Code of laws. (1976 Code).   The section begins with: “The General Assembly declares that authority for this act is the following…”

These are known, legally, as declaratory statements and do not hold the force of law (as they’re not part of the code of laws).  They do, however, show legislative intent.  Clause 5 of this section makes it easier for the Executive branch to step up and try to interpose against (BLOCK) Obamacare.  It reads: “The General Assembly of South Carolina has the absolute and sovereign authority to interpose and refuse to enforce the provisions of the Patient Protection and Affordable Care Act of 2010 that exceed the authority of the Congress.”

The nature of the three branches of government dictates that the executive branch carries forth legislative enactments. All the legislature can do is make statements of policy intent and pass laws. The executive branch must carry them out.

While this clause doesn’t actually require the executive to interpose, it provides additional policy backing to any attempt to do so.  Consider this clause an encouragement.

The legislature says where to strike. The executive swings the hammer.

DETAILS

The greatest concern shared by friends about the legislation appears to be in Section 1, the “declaratory” clauses of the legislation.  As stated above, declaratory statements in Section 1 don’t hold the effect of law like the text of Section 2 that will be amended into the 1976 Code of the State of South Carolina.  But, since they show a policy intent, it’s good to see what’s there.  In general, the intent in the bill is actually very good for nullification.  Here’s the main clauses:

1. “The Tenth Amendment to the United States Constitution provides that the United States federal government is authorized to exercise only those powers delegated to it in the Constitution.”

This is self-explanatory.  And it’s good that the General Assembly is going on record in support of the 10th Amendment limiting federal power – strictly – as a policy objective.

2. Article VI, Clause 2 of the Constitution of the United States provides that laws of the United States are the supreme law of the land provided that they are made in pursuance of the powers delegated to the federal government in the Constitution.

This is VERY good.  The entire establishment takes the view that all federal laws are supreme and the fact that a state would correct them all on this is extremely good.  This goes beyond what most states are doing.  (learn more about the supremacy clause here)

3. It is the stated policy of the South Carolina General Assembly that provisions of the Patient Protection and Affordable Care Act of 2010 grossly exceed the powers delegated to the federal government in the Constitution.

and

4. The provisions of the Patient Protection and Affordable Care Act of 2010 which exceed the limited powers granted to the Congress pursuant to the Constitution, cannot and should not be considered the supreme law of the land.

This kind of statement is exactly what Thomas Jefferson and James Madison both referred to when advancing the principles of nullification and interposition back in 1798.  The core?  The federal government cannot be trusted to police itself.  Therefore, the states must – and do – have a role to determine constitutionality of federal acts.  This is a big deal and very good.

Some would have you believe that because the policy statement in H3101 isn’t taking the position that all of Obamacare – every last word of it – is unconstitutional – that you should oppose the bill.    This is absurd.    That would be like opposing a bill nullifying federal background checks on firearms because that same bill didn’t also nullify every other federal law on firearms.

Opposing a step forward like this gives political cover to people like Nancy Pelosi - who want to force Obamacare on you.

The fact that the Assembly is willing to make constitutional determinations on a federal act already ruled constitutional by the supreme court is historic.  No other state is doing this.  None.  South Carolina is taking the lead.

5  The General Assembly of South Carolina has the absolute and sovereign authority to interpose and refuse to enforce the provisions of the Patient Protection and Affordable Care Act of 2010 that exceed the authority of the Congress.

Some friends of the effort have warned that this declaratory clause is “dangerous” because it creates a situation where the General Assembly – and only the General Assembly – is authorized to “interpose and refuse to enforce.”  In other words, they warn, the Governor, sheriffs and other government officials would actually be prevented from interposing and refusing enforcement.

Legally, this is wrong.  As stated above, these declaratory statements are not going to be part of the 1976 Code of South Carolina – so therefore, do not hold the force of law.  They do, however, show an intent of the Assembly.  Had the assembly attempted to make is part of the 1976 code that it held the “exclusive” sovereign authority to interpose and refuse to enforce, it would have been Reductio ad absurdum.    Reduced to absurd, that is, because the assembly actually can’t do the interposing – the executive, or other state actors have to carry that part out.

On the other hand, as mentioned above, this policy statement actually strengthens the ability of the state executive to “interpose and refuse to enforce.”

Why?   The nature of the three branches of govt dictates that the executive branch carries forth legislative enactments. All the legislature can do is make statements of intent and pass laws. The executive branch must carry them out.   The legislature says where to strike. The executive swings the hammer.

Here are the levels of executive power :

1) Implied powers that run contrary to legislative enactment.
2) Implied powers where there is legislative silence.
3) Action pursuant to state law.
4) Action pursuant to specific constitutional directive.

Since the declaratory statement doesn’t specifically refer to an “exclusive” power of the General Assembly to act, this is a general policy objective of the general assembly.  And who carries out that policy?  The executive branch.

This policy statement falls between #2 and #3 above, giving the South Carolina executive additional authority to “interpose and refuse to enforce” than what was there without H3101.

H3101:  JEFFERSON AND MADISON APPROVED

Some in the General Assembly have indicated that they want to take a piece-by-piece approach to Obamacare nullification.  That’s ok.  Thomas Jefferson and James Madison did it that way with the initial American proposals for nullification and interposition against the Alien and Sedition Acts of 1798.

In fact, their initial effort was a non-binding resolution.  They felt that what was first needed was to educate people on the role of the states in a) determining constitutionality and b) encouraging other states to join them in either nullification or interposition efforts over time.  In some detail in those resolutions, they spelled out the provisions of the federal acts that were a violation of the constitution.

In some ways, South Carolina’s H3101 is a stronger step forward than the resolutions of 1798. It’s not non-binding.  It’s law, and it’s a very aggressive first step in an effort to nullify Obamacare.

South Carolina isn’t waiting to build a consensus with other states before acting.  They’re taking Thomas Jefferson’s advice on the next step and acting now – leading others to the cause.

THREE MORE STEPS NEEDED

This bears repeating.  Rome didn’t fall in a day – and stopping Obamacare will certainly not happen with just one state bill.

While H3101 is a great Obamacare nullification bill in that it’s the first of its kind in the country and will have concrete results that will help bring the federal act down, additional work is going to be needed.

Here’s three steps that people in South Carolina – and elsewhere – will likely need to take.

1.  Legislatively declare additional provisions of Obamacare which are unconstitutional – in order to ensure that the legal requirement to refuse enforcement in Section 2 of H3101 goes into effect.
2.  Ban the Medicaid Expansion.  And reject the 72 grants – even if it has to be one-by-one.
3.  Get some better state legislators.  While H3101 is a great bill as is, there was some serious opposition to it in the House, and there’s indications that the Senate doesn’t like it either. Our view is that it’s moving forward only because of intense grassroots pressure.  Better legislators means that good bills will move forward without them having fear of losing their cushy gigs.

And here’s a bonus 4th step.  Everyone in the country who supports the Constitution should get behind South Carolina.  Like the fact that there isn’t a single perfect human being on earth, there’s also not a single perfect bill either.

Become a member and support the TAC!

But H3101 is a great step forward, and opens the door for additional actions in the future.

James Madison advised exactly what South Carolina is doing with H3101.  In Federalist #46, he wrote:

“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 cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.” (Emphasis added)

It’s essential that other states rally to South Carolina’s aid by taking similar – or even stronger – steps that will “present obstructions” to Obamacare.

Then that unconstitutional federal act will be brought to its knees.

EDITOR’S NOTE: This article was a collaborative effort from multiple members of the TAC team.

If James Madison and Thomas Jefferson strolled down the streets of Washington D.C. today, listening in on current political discourse, they would likely declare conventional wisdom holding the federal government supreme in all it does a “crackpot post-antebellum legal theory.”

Even Alexander Hamilton would undoubtedly express shock. After all, he was one of the first defenders of the Constitution to point out the limits of supremacy in Federalist 33.

“But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”

Thirteen independent sovereign political societies came together to form the United States, and they delegated specific powers to a general government. All other powers remained with the states and the people. There was no debate on that matter. Both supporters and opponents of the Constitution agreed the federal government was to remain limited. The ratification debate revolved around one question: would the Constitution actually create the limited government intended?

Known as the “Father of the Constitution,” Madison worked tirelessly for ratification. When anti-federalists insisted the federal government would not remain constrained, Madison argued that the states would serve as the check on its powers.

“Should an unwarrantable measure of the federal government be unpopular in particular State…the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”

Here we find nullification’s roots before the Constitution was even ratified.

The principles serve as Madison’s means of opposition – powerful and at hand. Quite simply, state nullification is any action rendering an unconstitutional federal act null, void or simply unenforceable within a state.

Over the last several years, Americans across the political spectrum have embraced the principles, if not in name, at least in practice. States seeking to nullify violations of the Second Amendment recently spun the idea into the news cycle, but California began its nullification efforts back in 1996 with the passage of Prop 215. Today, 19 states have legal medical marijuana programs, despite Supreme Court-approved federal prohibition. Last year, Virginia outlawed state cooperation with indefinite detention under the NDAA. And the national ID program envisioned under the Real ID Act of 2005 still does not exist. Under the leadership of the ACLU, states simply refused to implement it.

Still, most American commentators and pundits continue to vilify nullification, branding it a wacky discredited legal theory concocted by John Calhoun to support slavery.

In fact, Madison and Jefferson first formalized the principles in 1798, responding to the Alien and Sedition Acts. And while nullification did play a role in the Civil War, it was not the one most Americans think. In fact, northern states claimed state sovereignty to block the Fugitive Slave Act of 1850. They passed liberty laws, effectively nullifying this disgusting federal “law” denying due process to any black person accused of escaping slavery. They were so successful, South Carolina accused northern states of enacting “laws which either nullify the Acts of Congress or render useless any attempt to execute them” in its Declaration of Causes for secession.

Get the new book today!

And while some argue that the Civil War “settled” the nullification argument, it did no such thing – no more than George Bush’s war “settled” anything legally or morally in Iraq.

Those who brush nullification aside as “wacky” and “crackpot” wash away the very foundation of American political thought. As Jefferson wrote, the states “are not united on the principle of unlimited submission to their general government,” and the government created “was not made the exclusive or final judge of the extent of the powers delegated to itself.”

Federal supremacists would have us believe the people of the states created a federal government with limited, enumerated powers, insisted on further “declaratory and restrictive clauses” – the Bill of Rights -   and then left it to that government to decide the extent of its own power.

In other words, we must accept that the founders believed a government could exist as a self-limiting institution.

Absurd.

Nullification naturally flows from the system the Constitution created. Without some way to hold federal power in check, we end up not with a limited government, possessing enumerated powers, but an indefinite one, subject to particular exceptions.