James Ostrowski, author of Direct Citizen Action: How We Can Win the Second American Revolution Without Firing a Shot recently wrote, “In the realm of politics, the best chance the liberty movement has is not winning elections but convincing states and localities to stop cooperating with the federal government. I believe the Tenth Amendment Movement, as it is known, has great potential.”

An important revolutionary principle that American colonists learned from reading “Cato’s Letters” in the mid-18th century was this: Unjust laws must be resisted immediately, or they will set the stage for additional encroachments. One of “Cato’s Letters” explains:

“A nation has but two sorts of usurpation to fear, one from their neighbors and another from their own magistrates. Nor is a foreign usurpation more formidable than a domestic, which is the most dangerous of the two, by being hardest to remove and generally stealing upon the people by degrees, is fixed before is scarce felt or apprehended.”

Thomas Jefferson had a personal copy of “Cato’s Letters” in his home library and he put this principle into action when the so called federalists began arresting their political opponents and throwing them in jail. While still serving as vice president, he secretly urged immediate resistance by drafting what have come to be known as the Kentucky Resolutions of 1798.

The reason he drafted those resolutions was to convince state legislators that nullification was the most appropriate form of immediate resistance . The reason I wrote this essay, is to convince American libertarians today of the same thing. I won’t go into detail explaining what nullification is. There are plenty of other articles widely available which already do that – not to mention Tom Woods’ latest, Nullification: How to Resist Federal Tyranny in the 21st Century.

The Problem of Power

In an oration in 1772, John Adams declared that, “Liberty, under every conceivable form of government is always in danger.”

26 years later, he personified that very danger when he signed into law the Alien and Sedition Acts, which made criticizing the president and others in the federal government a crime. Adams showed us that government is the greatest threat to liberty because it always tends toward the destruction of the individual’s natural rights.

Because government is such a dangerous concentration of power, American revolutionaries recognized the absolute necessity of limiting government power and dividing it into as many competing jurisdictions as possible. The hope was that under such an arrangement, the federal government would be held in check and people would have the option to move freely between more powerful, but competing states. Competition would keep their multiple jurisdictions from becoming intolerably oppressive.

This decentralized condition, which is called federalism, should be very desirable to libertarians. Why? Because if they are forced to live under a government at all, this condition at least makes it much easier for them to move to a state with more freedom or chip away at their own state government, to the point that it barely escapes being no government at all. So why is this not our condition today? At least one very important reason is because we have not insisted that our state governments use nullification.

For the first time since the 1850s, such a condition is a real possibility in America. Political, technological and economic conditions are coinciding to create what could be a perfect storm. In military terminology, conditions such as weather can be used as force multipliers, which make a given force more effective than that same force would be without it. In addition to making the most of economic and technological force multipliers, what is needed next is greater acceptance and approval by the majority of Americans for the widespread use of state nullification. Successfully gaining that acceptance and approval at a time when the federal government is perceived as being bankrupt, both financially and morally, could bring about radical decentralization sooner than most libertarians could have imagined just two decades ago. In his 1975 research article entitled, The American Revolution and the Minority Myth, William F. Marina wrote:

“What I am suggesting is that the question of legitimacy is really at the heart of the whole process of revolution. A revolution is impossible unless a majority withdraws its allegiance from the old regime and begins to place it elsewhere. Often that process is masked to the point that when the old regime collapses, the fall appears more ‘sudden’ than was actually the case.”

Considering what lies ahead of us economically, it seems not only plausible, but probable, that people will soon begin to rapidly transfer legitimacy from Washington, DC to their state capital, partly from disgust and partly out of sheer necessity.

Nullification: Revolutionary or Reformist?

This scenario has nothing to do with overturning the constitutional order. In fact, it is precisely how the constitutional order was supposed to work in the first place. The use of nullification by states to neutralize acts of federal usurpation is both constitutional and revolutionary at the core. William J. Watkins explains it like this in his book, Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and their Legacy:

“The Kentucky and Virginia Resolutions, written over two decades after the colonies declared independence from Great Britain, represent a reaffirmation of the spirit of 1776. At the core, the Resolutions are intrepid statements in favor of self-government and limited central authority. A product of the political and constitutional battlegrounds of the 1790′s, the resolutions serve to link the federal union created by the Constitution with the aspirations of the patriots of the American Revolution. Indeed the touch of the author of the Declaration of Independence is unmistakable when one reads the Kentucky Resolutions of 1798.”

Unlike the reformist strategy which seeks to mobilize power within Washington, DC in order to reform and redirect that power, nullification seeks to diminish and redistribute that power through relentless, decentralized, but ideally coordinated, acts of state level, constitutional resistance.

Over the past few years, state legislators across the country have created a heavy wave of nullification legislation. We libertarians need to grab our surfboards!

Revolutionizing the Tea Party

As libertarians, we must play a leading role by carrying out the labor-intensive but very fruitful task of selling nullification to non-libertarians who are already mobilized. These Americans are extremely upset and have become very active in grassroots organizations. Unfortunately, they are transfixed by national politics and attribute too much importance to wining in federal elections. What they have not yet realized is that their almost exclusive reliance on electoral means to oppose federal tyranny will only get them more of the same. Libertarians should, therefore, act alongside them in ways that do not compromise our principles, while simultaneously wining their support for nullification legislation and directing their attention to state level solutions that involve more radical means of resistance. Those running for, or already elected to state office need to be sold on the constitutionality, morality and effectiveness of nullification. The good news is that unlike beltway insiders, most of these people actually live and work in your community.

Libertarian intellectuals, leaders and grassroots organizations have been busy manufacturing the tools and preparing the soil for us. Tom Woods, for example, has just written what some have called a handbook on nullification. One well known talk show host has called it, “a battle plan” and “the answer to our prayers.” The Tenth Amendment Center has been tracking recent nullification legislation, writing new and improved bills, and working with state legislators to get them introduced and passed.

On top of all that, a host of organizations like Downsize DC, Campaign For Liberty, Daily Paul, and others have joined the Tenth Amendment Center and libertarian activist Trevor Lyman in sponsoring the Nullify Now! tour, something that advocates of this essential principle may have thought impossible just a few years ago. The tour will feature speakers almost all libertarians know and respect – Tom Woods, Jim Babka, Tom Mullen, Michael Boldin, Jack Hunter and others. These speakers will give grassroots activists and people in state government a logical, moral, and constitutionally sound case for nullification.

The ground has been prepared and conditions are favorable for radical decentralization . Whether a critical mass of libertarians will get involved in this new movement and make use of the tools available to them before this decisive point in history has passed us by remains to be seen. You can be sure that there are plenty of politicians in Washington, DC who live in fear of the day that states, guided by liberty activists, stand together and once again make use of that powerful weapon called nullification. That’s why they want it to remain taboo to even discuss it. And it’s why we libertarians must do everything we can to advertise it.

On Independence Day weekend, Georgetown University law professor Randy Barnett and I appeared on Freedom Watch, Judge Napolitano’s new program on the FOX Business Network. In the first segment, the Judge and I discussed my new book, Nullification: How to Resist Federal Tyranny in the 21st Century, which argues that the states have the right to prevent the enforcement of unconstitutional federal laws within their borders. In the second, we were joined by Monica Crowley and Professor Randy Barnett, the latter of whom was skeptical of nullification as a valid constitutional doctrine or a plausible strategy against the growth of federal power. He has since followed up on our appearance with a blog post at the Volokh Conspiracy.

Professor Barnett’s argument is twofold. First, he believes insufficient evidence exists pointing to a power of state nullification within the original understanding of the Constitution. I think such evidence does exist, and I summarize the argument toward the end of the video clip below, though of course a lengthier answer appears in my book. Secondly, he holds that the federal courts, and the Supreme Court in particular, will not uphold a state power of nullification. I don’t think anyone would disagree with that. His conclusion, though, is that nullification is therefore a waste of time – if the courts don’t acknowledge it, what kind of progress can it make?

Legal scholar J.H. Huebert was particularly taken aback by Barnett’s dismissal of nullification as a waste of time:

I find it remarkable that Barnett would consider nullification a waste of time. Barnett has devoted an extraordinary amount of effort to trying to use the Fourteenth Amendment’s Privileges or Immunities Clause to protect libertarian rights – even though the Supreme Court established in 1873 that the Clause does no such thing, and the Court hasn’t wavered in that view ever since, even when it had a clear opportunity to do so in McDonald v. Chicago. In short, the Privileges or Immunities Clause has never been used to do what Barnett wants it to do, and there is no reason to think it ever will be, unless you think some future U.S. president is going to nominate a Court full of Clarence Thomases.

Meanwhile, what has nullification done? As Woods shows in the book, it’s been used numerous times throughout U.S. history to defend individual rights against the federal government. Recently, for example, it has been used in California to protect medical marijuana users there – after Barnett was unable to do so through his preferred means of fighting in the federal courts, in Gonzales v. Raich.

Who’s wasting their time?

As Huebert suggests, Barnett’s own career suggests the utility of nullification. In the wake of Barnett’s heroic but failed attempt before the Supreme Court to protect medical marijuana patients from the enforcement of federal drug laws, such patients continued to go about their business. As many as one thousand medical marijuana dispensaries still operate in Los Angeles County alone. This is not the same thing as the state of California issuing solemn resolutions in defiance of the federal government, but it’s not nothing, either. I say this not to be flippant, since I do very much respect Professor Barnett and his work, but how does he feel about this defiance of the Supreme Court? Would he order all these poor folks to desist? Would he tell them the Justice Department has every right to punish them now? Or does he not believe they are justified in their civil disobedience?

In fact, why did the Justice Department eventually back down? Because they began to doubt their interpretation of the commerce clause? They backed down because resistance in the state was too great.

Barnett is right about the Supreme Court: the justices aren’t going to like nullification. But if we conceive of nullification in the twenty-first century as a species of civil disobedience sanctioned by a state government, what does it matter? Nullification involves the refusal to sanction unconstitutional edicts from whatever quarter they may come.

I once asked a left-wing critic whether he would have supported state nullification of the federal roundup of the Japanese in America during World War II. Not necessary, he said: “The equal protection clause as applied in Yick Wo in 1866 would have worked just as well.” Now that’s classic. Standing there holding a Court precedent in your hand as the goons whiz by works just as well as a state government telling them to stick their roundup where the sun don’t shine?

Barnett cites Madison’s Report of 1800, but to my mind the most significant passage in that document is where Madison insists that some recourse must exist for the states in cases in which even the hallowed judicial branch betrays the Constitution. Barnett may in fact place too much emphasis on the single figure of Madison; as Kevin Gutzman shows in chapter 3 of Virginia’s American Revolution, the Virginia General Assembly debates over the Virginia Resolutions of 1798 make clear that everyone agreed an unconstitutional law was null and void. Nullification merely disallowed the enforcement of a nonexistent constitutionality. What could be controversial about that?

Now I do support the general thrust (though not all the particulars) of Barnett’s proposed Bill of Federalism, a series of constitutional amendments for the restoration of federalism. (Barnett has since amended point 6 to read “two thirds” instead of “three quarters.”) It would, however, be extremely difficult to introduce and ratify, and we would still be left with the need for a last-resort defense mechanism for the states in case these well-meaning amendments themselves should be disregarded or fail to fulfill their intended purpose.

Anything we might propose, Barnett’s amendments included, faces an uphill battle against very difficult odds, so I question the helpfulness of singling out state nullification for criticism as if we were just drowning in plausible alternatives. What do nullification skeptics recommend instead, particularly if we rule out the failed strategies of the past that we all know perfectly well will yield us nothing but more failure in the future? I assume Professor Barnett agrees with me that the definition of insanity is expecting another GOP plastic man – Mitt Romney, I’m looking in your direction – to put things right.

To be sure, it could turn out that, short of the financial day of reckoning that is surely coming, slowing down the federal government is simply impossible. But if we are to make any inroads against it, they are probably not going to come in the form of tidy legal briefs whose persuasive force overwhelms the judicial branch. They are unlikely to come through legislation, as generations of failure to roll back the federal government should have made clear enough.

Ultimately, a coordinated response by as many states as possible, in which those states declare that they will not comply with, and will work to prevent the enforcement of, a federal edict seems like the only realistic way the federal government might be forced to retreat. We would be way beyond court decisions at that point. Court decisions would be like Politburo speeches in 1991. The states would be carving out a new modus vivendi with the federal government, inspired by a long-dormant Jeffersonian tradition whose wisdom cannot seriously be doubted in 2010.

Times of economic turmoil can put options on the table that might have been dismissed under other circumstances. The best we can hope for in the coming years is a lengthy period of economic stagnation, followed by serious social upheaval when the entitlement programs inevitably collapse. Is it so unthinkable that a few governors, anxious to preserve some kind of livable economic conditions for their people, could begin defying unfunded mandates from the federal government in the name of the prosperity of their state? A financially strapped federal government will hardly be able to stop them. What supporter of the market economy and the free society would oppose a development like this? No one, right? So why not prepare the ground for it? That’s why I decided the time was right for a book that would set forth the most persuasive historical, constitutional, and moral arguments for a once-despised remedy that may turn out to be the last functioning defense mechanism of a decaying republic.

Thomas E. Woods, Jr. [send him mail] holds a bachelor’s degree in history from Harvard and his master’s, M.Phil., and Ph.D. from Columbia University. He is the author of ten books, including the just-released Nullification: How to Resist Federal Tyranny in the 21st Century, and the New York Times bestsellers Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse, and The Politically Incorrect Guide to American History. Visit his website and blog, follow him on Twitter and Facebook, and subscribe to his YouTube Channel.

Copyright © 2010 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Nullification: A Necessary Power for State Sovereignty

There has been plenty of chatter in the past year about “state’s rights” (more correctly termed “state’s powers”, as political entities do not themselves have any rights) and the tenth amendment to the Constitution which provides that any power not expressly delegated to the federal government is reserved to the states, or to the people. Concerned citizens of all political persuasions have rallied around the banner of federalism to promote abolishing or restricting federal programs and replacing them with state-based alternatives, or nothing at all.

For all the noise being made by the cacophony of individuals frustrated with the federal government, however, few either understand or are willing to embrace the two key components that would make their goals a reality, rather than a slogan painted on a banner for a tea party protest. In order to demand—not ask—that the federal government limit itself to its constitutionally delegated authority and nothing more, states themselves must have representation in the federal government, and they must nullify any federal law that is clearly outside of the scope of federal jurisdiction.

The first topic has been briefly addressed previously here, but a summary is perhaps important. Prior to the ratification of the 17th amendment, states had representation in the federal government through one of the compromises produced during the Constitutional Convention: the bicameral legislature. Whereas the House of Representatives was comprised of congressmen elected directly by the people and representing their specific interests, the congressmen elected to the Senate, in pairs for each state regardless of that state’s population, were elected by the state legislatures, and it was to these political bodies that U.S. Senators were beholden. As such, the Senate was the congressional representation for states themselves, where their interests could be promoted and their concerns made known.

After 1913, however, the Senate was turned into another body accountable only to the people directly, thus removing the representation states once enjoyed. Since that time, the several state governments have had no voice in the federal government, and now find themselves in the middle of a stronger relationship forged between the federal government and all citizens directly.

Were U.S. Senators still elected by and accountable to the state legislatures, they would exist in a preventative capacity, working to vote down any bills that were deemed to be against a state’s interest, or more importantly, an extra-constitutional power grab on a matter not found under the federal government’s purview. That Senators do not now have any allegiance to the state governments themselves—in other words, this first option no longer even being an option—implies that the second opportunity for helping maintain the balance of federalism becomes all the more important.

To some, nullification is a scary word. The idea of standing up to the federal government in any way is similarly scary for many, but this does not mean that the ability to do so should be eliminated. Nullification implies simply saying “no” when the other party has the moral authority to do so. Imagine a parent telling a child “no” when he tries to take a toy that is not his, or an employer saying “no” when the employee tries to take the company car on vacation. As it relates to government, state governments created the federal government and delegated to it limited and specific authority. Anything beyond these powers is a usurpation, and thus the states, like a more powerful parent, retain the ability to simply say “no” when it becomes necessary to check a wrongful action.

As the efforts of state-elected Senators would serve as a preventative measure, the existence and use of nullification is a reactionary power to be used if and when un-constitutional laws have already been (or will soon be) implemented. It is important to remember that the states existed before, and created, the federal government. The Constitution is, at its core, a contract between the states and the legal codification of powers they have voluntarily assigned to their creation, the federal government. If and when there is a breach of contract by the created entity, the states, as sovereign and superior entities, must have (and use!) a mechanism whereby they can reject the proposed action.

Nullification is a form of civil disobedience—a powerful statement of political non-compliance in the face of aggressive, self-aggrandizing government. Its origins date back to Thomas Jefferson and James Madison with the Kentucky and Virginia Resolutions, and has been used from time to time ever since. For example, in 1833 South Carolina nullified the (federal) Tariff of 1828 which it deemed un-constitutional because rather than being a (constitutional) tariff to raise revenue, it was specifically created as a protective tariff to manage and protect certain industries. A few years prior, New England states banded together and contemplated nullification as well, during the Hartford Convention of 1814, in response to the War of 1812 and the disproportionate damage inflicted upon local commerce due to British blockades. Nullification was used in the personal liberty laws responding to the federal fugitive slave laws, as a method of pushing back against the federal government’s undue expansion of authority.

Though it went out of vogue for some time, the doctrine of nullification has come back with a vengeance, and has found its way into public policy. Whether the discussion rests on REAL ID, “Cap and Trade”, health care, firearms regulation, or a number of other controversial topics, several states have already passed legislation giving the federal government the proverbial middle finger. It may not be referred to as nullification by the state legislatures or the sponsors of the legislation, but make no mistake: states are rediscovering the power of “no” and starting to resist the century-long tradition of federal omnipotence.

States have lost their voice in the federal government, and thus have no reassurance that laws will not be passed that encroach upon their constitutionally-reserved powers. History amply demonstrates the plain fact that the federal government recognizes no restrictions, and once an objective is established, it will do whatever is necessary to achieve it, states and subordinate concerns be damned. As such, the remaining tool of nullification must be increasingly protected, and judiciously implemented, in order to begin effectively fighting back against the federal government and restoring rights and powers that were once commonplace, but now have become an endangered species.

Un-constitutional federal legislation: just say no.

Connor Boyack [send him mail] is a web developer, political economist, and budding philanthropist trying to change the world one byte at a time. He lives in Utah with his wife and son. Read his blog.

On a recent road trip, I had the opportunity to have a conversation with a great and wise friend of mine. While reminiscing the years from his past, he told me the story of a great speaker, writer, and philosopher who spoke at Wheaton College in nineteen sixty-eight. He laid out the setting of the speech, the speaker’s demeanor, and the effectual, authoritative words that were spoken. Something specific that the speaker said awed him and the crowd – something that has lasted a lifetime and left a long lasting impression on his life. He quoted these words to me as something the speaker repeated over and over while ending his speech:

“Do not stop, keep going. Do not stop, keep going.” – Francis Schaeffer – Founder of L’Abri Switzerland

The quote itself implies an admirable and noble quality that is relevant to all of us – perseverance. In fact, it is of essence and a necessity when striving for what we struggle for: state sovereignty, nullification efforts, and God given rights. Yet, unfortunately to our great misfortune, perseverance diminishes over time – seemingly for all of us. It is a quality that frequently dries up in our lives. We cannot seem to hold it in our hands as if it blows away with the wind – it is there one moment and gone the next.

We are inspired when we hear the news of success and hope briefly grazes over us, our spirit’s are lifted and like a medicine it cures the disease. We hear or read something profound and it sends chills down our spines and we can taste the inspiration and our sense to persevere is renewed. And yet again, for most of us it is short lived and it subtly but surely wanes over time. Therefore, we often lose confidence in ourselves and in our struggle. And ultimately we wonder: Is this pain, this struggle, and this fight worth our trial and should we persevere through it?

To answer the above question, let it be known there is no quick fix for this problem and our American idea of instant gratification will not bend itself to success as what lies ahead of us is a long hard path or possibly better stated, “the road less traveled.” However, while viewing it from the illuminating light of liberty, it is without question worth the patience, pain, and struggle. Why? In the words of Charlton Heston, “Because it matters.”

We often hear or speak of the patriot Samuel Adams and one of his most famous quotes.

“It does not require a majority to prevail, but rather an irate, tireless minority keen to set brush fires in people’s minds.” – Samuel Adams

In my opinion, it is one of the most insightful and beautiful quotes in American history. However, it implies something greater than what we most often conceive. The ideas of prevailing, an irate minority, and setting brush fires in people’s minds all sound wondrous to us; yet, my fear is that “tireless” does not. And today we struggle for something that unyieldingly requires a “tireless” mind and a constant restoration of perseverance. We struggle for something real, something innate to ever person by their God given right – liberty, which is not easily acquired nor is it something that should be apathetically disregarded. I emphasize this point with the following quote:

“Liberty, once lost, is lost forever.” – John Adams

If thought about considerably, our founder’s foresight and prudence shows us the magnitude and scope of our concern. I personally have hope that it is not “lost forever,” as I do not think this was Adam’s intention in writing. It was a forewarning, which will unquestionably take time to reacquire – perhaps years or even decades. As Michael Boldin stated, “There is no silver bullet.”

So, do not be deceived into thinking that those in the position of federal power will desist and wither away silently. This futile thinking will lead to dismay, loss of hope, and ultimately apathy. It will take a consistent group of like minded people in support of the original intent of the constitution and an unwavering opposition to unconstitutional mandates and laws. It will be a continual process, one that most likely will never end.

To regain what has been lost, one must dedicate themselves throughout their lives to the cause of liberty, true patriotism, constitutional knowledge, education, and American foundational history. Indeed, this must also be shared and taught to our fellow citizens, children, and grandchildren lest we tread down the same blemished path forever.

And to quote Boldin again, “We the people are sovereign. We just need to start acting like it.” However, underneath this statement lies all that has been stated in this article – “acting like it” requires long term challenges which in turn requires long term firm resolve, which can most accurately be described fundamentally as perseverance.

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To that end, the question remains: Will the brush fires set in people’s minds be greater for liberty or will they be outweighed by those predisposed to tyranny? And to the greatest extent, only prevailing with perseverance will decide the outcome. Therefore, I urge you to run your race well.

“Do not stop, keep going. Do not stop, keep going.” – Francis Schaeffer

Shane Musgrove [send him email] is a freelance writer living in Vail and Denver, Colorado.

The pen that the President used has already been tucked away for it’s ‘historic value’. The bill has been printed with congressional approval and now that Barack Obama’s signature appears on it we have officially entered an age of unprecedented Federal control over the most tangible aspect of our human experience- our bodies.

It is also likely that printing presses are already churning out a form that you will someday find in your mailbox, the papers requiring you to sign away your medical authority to bureaucrats who make their assessments from the other side of the continent.

What is your emotional reaction to this new era? Trepidation? Despair? Grief over the loss of our constitutional republic? What will we do? What will you do?

Some will celebrate what they see as the passage of a ‘change’ bill, granting at long last access to health care so badly needed. Others like myself, are seeing an alarming parallel between the health care talking points released today and the lofty promises made at the beginning of the Iraq War. The track record of Federal power increases tell us that mandates like the one signed into law today are seldom a net gain for those outside of the political class.

Just as the Bush administration promised that the Iraq invasion would “pay for itself” through oil revenue, DC’s current crop of spinners claim that this unprecedented new health care bureaucracy will actually diminish the national deficit, though the actual amount we will pay in taxes won’t be known until Barack has exited the Oval Office. In 2003 ‘spreading democracy to the Middle East’ was similarly sold to the American people, with end results that look much different from that glorious initial pitch.

What we do now should not be centered around the Patient Protection and Affordable Care Act of 2010. Reacting with national solutions to Federal actions is simply playing their game. Have no doubt, someone with a Federal pay stub is ready and waiting with a plan to counter reactions, such as the Attorney’s General from a host of states who sued the Federal government 7 minutes after the bill was signed. It may even be the same brain trust that effectively parried those opposing health care reform at the grassroots level before the bill became law.

To repel the Patient Protection and Affordable Care Act, there is one solution that not only denies this new Federal mandate, but also future ones as well. Banding together in our respective sovereign states (yes, even California) and pushing back against those who are prepared to limit our choice of medical treatment is the starting point for resistance to a whole host of Federal mandates, on everything from light bulbs to what is in our children’s textbooks. We must assert our sovereignty as described in the 10th amendment.

State sovereignty is suddenly on the lips of many across the republic who recognize that the only way to stop the out-of-control Federal beast is to head it off at the pass- a.k.a. our state border. This the strategy of the state sovereignty movement- to respond using the tools so thoughtfully provided by the architects of our constitutional republic. Chief amongst those tools is the concept of nullification- not waiting for a US Supreme court decision for approval, but rather asserting that unconstitutional Federal mandates are null, void and of no force.

You, myself and everyone we know form the top of the food chain in the American system of government. It is up to We the People as sovereigns- not the Federal legislative branch- to honor out the intentions of our nation’s founders and see to it that the Federal beast remains within its strict limits. This will never be achieved by asking the beast, for once escaped from its confinement it will only seek to increase its current power.

We must cast a net over this rampaging Federal government from each of our 50 states and with the resolute solidarity of We the People, the animal we created will be returned to its cage.

Bryce Shonka [send him email] is media and grassroots director for the Tenth Amendment Center and state chapter coordinator for the California Tenth Amendment Center.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

The following was a prepared speech for an event in Greeley, CO on 12-22-09

I want to talk with you about the State Sovereignty movement and Nullification.  Our Founding Fathers secured for us a land of freedom and opportunity that has been the envy of the entire world, and sought to protect those freedoms and that opportunity with our Constitution.  But the Constitution is not in itself the protection, only the means for us to protect ourselves.

It is quite clear the federal government is completely out of touch with those they are supposed to be serving.  Yet the Constitution provides for us, the inheritors of the greatest system of government the world has ever known, a way to defend our rights.  This is the tenth amendment!  And while Amendment Ten has not stopped the power grab from all branches of the federal government, it does provide both the framework and the justification for “we the people” to maintain and defend our share of the power in our political system.

First you have to understand that power is a finite resource, meaning that as one group gains power, it must come from another group.  In this case us.  Make no mistake about it; a lot of laws passed in the last ninety six years have been about power.  More to the point, it is about power that is going from “we the people”, to the political class in Washington D.C

So it is not enough to be against Nationalized Healthcare,

It is not enough to be against Cap and Trade,

It is not enough to be against the bailouts, against TARP, against the Patriot ACT, against No Child Left behind!

It is not enough to oppose activist judges legislating from the bench, or executive orders, or bureaucratic regulations or any other “laws” without the understanding that these “laws” were NOT passed in a legislative branch of Government as laid out in the Constitution.  You must see that it is really about power, and you have to begin to recognize that this power has been taken from “we the people”!

How?  Through apathy, indifference, and willful ignorance, we have let it be taken.

This brings us to the tenth amendment and Nullification.

Nullification is the idea that the people of the several States entered into a contract called the Constitution where the Federal Government was granted specific powers, most of which are found in Article One Section Eight.  And that the states had not only a right, but an obligation to interpose or nullify laws passed by the Federal Government that go beyond those powers, and infringe upon the rights of “we the people”.  This idea is clearly spelled out by the Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

It is common sense that the states must have some recourse available to them should the Federal Government overreach its powers, and infringe upon the liberty of “we the people”.  Does this sound crazy?  Some notes on this idea from the founders before the Constitution was ratified.

“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.” Alexander Hamilton Federalist Papers#28

“The local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” James Madison Federalist Papers# 39

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” James Madison Federalist Papers#45

“Hence, a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself.” James Madison Federalist Papers# 51

“We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.” Alexander Hamilton Federalist Papers#85

The Federalist papers were never meant to define the Constitution; but to sell it to the general public to get it ratified.  You see, the former colonist were not eager to trade a despotic centralized Government across the ocean for one on their own continent.  Proof is self evident by the fact that they had to promise that a bill of rights would be added to get it ratified.

The Doctrine of Nullification was first introduced in 1798 in the Kentucky Resolution, written by Thomas Jefferson, and the Virginia resolution, written by James Madison.  These were in response to the “Alien” and Sedition acts”.  I urge you to read these resolutions, and I brought a few copies of the pocket constitution put out by the Campaign for Liberty which includes both.  And in case you didn’t know, the “Alien and Sedition” acts among other things made it illegal to criticize the Government.  This doctrine was later adopted by Massachusetts and Wisconsin to nullify parts of the “Fugitive Slave ACT”, and by South Carolina to nullify a tariff they believed harmful to their state economy, and by the New England states in response to embargos.

‘What about the “Supremacy clause”?’  The one that states the Federal Government is the Supreme law of the land.

1997 “Mack/Printz vs. the US” Where two County Sheriffs sued the Federal Government over the Brady Bill.  This was a law that forced county Sheriffs to run background check on their citizens who bought handguns at the expense of the county, and any sheriff who did not comply with this law would be subject to arrest.  These sheriffs argued that this law violated the tenth amendment. This case was heard and ultimately won before the Supreme Court.

Justice Scalia writes for the majority, “…the Constitution’s conferral upon Congress of not all governmental powers, but only discreet, enumerated ones.” And in a direct challenge to this interpretation of the Supremacy clause, he writes, “It is incontestable that the Constitution established a system of dual sovereignty” he also states “This separation of the two spheres is one of the constitution’s structural protections of liberty. Just as the separation and independence of the coordinate branches of the federal government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”

But there is really a supremacy clause, and it states:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”  This clearly states the Constitution and laws that carry out, follow and continue the Constitution are the Supreme Law of the land.

How about the Real ID Act, whereby the States had until May of 2008 to issue everyone of its citizens a national ID card complete with biometrics, resulting in the complete loss of privacy from the state.  States who failed to comply by the deadline would see its citizens loose the ability to board an air plane or enter a federal building.  It has been over a year since that deadline has passed, and I ask you, do any of you have a “real ID”?  How many of you have entered a federal building or boarded an airplane in the last year?  Do you know why?  Because the states said NO!

Is there anyone here tonight, having heard what I have had to say about States Rights, and the Doctrine of Nullification, who believe that this is a real and viable strategy in the fight to, not only secure the freedoms we still enjoy, but to take back the power that has always been our god given natural rights?

For those of you who have answered yes, here is a strategy for how we will win!

First, we must redirect the efforts from the Federal office holders who not only have ignored us, but hold us in contempt! And direct that energy towards the State Legislators.  These people live here in our communities with us and have much less insulation from “we the people”.

We must get them to introduce and pass key laws including: nullifying both a National Healthcare act and Cap and Trade, an honest money act, to protect Coloradoans from the oncoming hyper-inflation that will be the result of this out of control spending.  Furthermore we should follow Tennessee, whose legislators are introducing a bill which creates an escrow account whereby legal federal taxes are collected and held by the states as protection against federal backlash against our nullification efforts.

Next we must have them introduce and pass legislation which will “build and impenetrable wall around the county sheriff and the second amendment” examples include “Sheriff First”  “Extension of the Castle Doctrine” “Prohibition of Gun and Ammunition Tracking” and finally a “Firearms Freedom Act”.  This is laid out in detail in an article I have printed out, and brought with me.

At some point as “we the people” work to make the Constitution relevant again, you will begin to hear the progressives and their puppets use the term “general welfare clause”

The general welfare clause has been interpreted by those favoring a strong central government to mean that as long as the law was meant to be in the “general welfare” of the union, congress has the authority to pass it.  The argument against this is the Virginia plan, which was introduced by Madison at the Constitutional Convention.  This plan would have created a National Government that gave the central government the authority to do anything it wanted.  It is important to remember this plan was rejected by the delegation, and more importantly, it was never ratified by “we the people”.

James Madison, considered the ‘father of the Constitution’ and the author of the defeated Virginia plan, stated the following about this interpretation of the “general welfare clause”.

“Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them.” Think on that a second.  Now let me give you one of my favorite quotes from James Madison. “Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”

This should help to explain where we are today and how we got here, and hopefully what we need to do next.

Will it be easy?  No.  Every step of the way not only will enemies of Freedom tells us this wont work, but even our friends, who should be on our side will say it is impossible.  The Central Government is too big to take on!

Will there be risk?  Yes.  We will be taking on the most powerful “empire” in the world today, and you can be sure that they will not give up all this power without a fight.  But I ask you to consider what dangers our founding fathers faced, surely this pales in comparison.

I think Samuel Adams said it best when he said this, “If ye love wealth better than liberty, the tranquility of servitude better then the animating contest of freedom, go home from us in peace.  We ask not your counsel or your arms.  Crouch down and lick the hands which feed you.  May your chains set lightly upon you, and may posterity forget that ye were our countrymen”

I want to leave you all with a few closing thoughts. Remember;

It is about your future,

It is about your children’s future

It is about your grandchildren’s future,

It is about control,

It is especially about power, and finally

It is about TIME people were willing to stand up for themselves and do more then just complain to our would be masters for better treatment.  And begin to assert the power that is our god given birth right as American Patriots!

Geoff Broughton [send him email] is the State Chapter Coordinator for the Colorado Tenth Amendment Center

Post Script:  I wrote this as a speech, and most of my research was done through internet search engines.  Much of the content is from Articles or Videos posted at www.tenthamendmentcenter.com I used hyper links to articles where I took information from directly, to serve as a poor mans bibliography.  I would also like to recognize Kevin R.C. Gutzman, J.D., Ph.D. author of “The Politically Incorrect Guide to the Constitution” , Thomas E. Woods Jr.,Phd. Author of “Politically Incorrect Guide to American History” and Sheriff Richard Mack author of “County Sheriff Americas Last Hope” as books that I have read and was greatly influenced by.

If the current version of the US Constitution, as construed and applied by the federal government (in every branch) over the past 220 years, were reduced to writing in the form of a new constitution (the original language and meaning of the US Constitution notwithstanding), would the people of the states, as they existed in 1787, ratify the constitution? I think you would have to be utterly void of understanding of the principles of a constitutional federal republic and void of the history of our country and forefathers to state that such a constitution would be ratified today. This does not even take into consideration whether the states today would ratify the constitution of 2010–though there would likely be several states that would choose to be bound to the tyrannical national system existing today, but most certainly not all would.

Through various ways and means, the constitution as applied in 2010 literally contradicts not only the limitations placed upon the federal government, but also the retained powers of the sovereign states and the very character and nature of the union in 1787. So, what does this mean for the posterity of those people in 1787? It means that we are living under the force of a constitution which we did not ratify or consent to. Put differently, we are living in slavery, for the very definition of slavery is a people living under the force of government against their will.

It is quite clear from the plain meaning of the US Constitution that it was ratified with certain principles and understandings at that time to protect usurpations of the federal government over the states and the people respectively. The states sent delegates to the constitutional convention from May to September 1787 to address and remedy the flaws of the Articles of Confederation. For five months those men debated, articulated and prayed over the formation of the constitution. After the proposed constitution was sent to each state for consideration, each state convened in their own conventions to discuss the principles of free government as it related to the proposed constitution and whether that state should ratify it. For each state that ratified the constitution, they expressly stated that their ratification was to “secure the Blessings of Liberty to ourselves and our POSTERITY.”

One thing is certain: those involved in the ratification of the US Constitution expected that its principles and meanings be followed by their posterity, for without its fixed meaning, the “security” of the constitution would be seriously compromised. Indeed, how can a constitution secure the blessings of liberty for posterity when the meanings and applications of the constitution change by the opinion of 9 non-elected, President-appointed, life-term judges, who are connected to and dependent upon the very system of government the constitution was intended to limit? Talk about a conflict of interest.

If our forefathers who ratified the US Constitution intended to secure the blessings of liberty for their posterity but believed that its meaning, application and limits would change over time, then the US Constitution (as applied today) falls severely short of securing the blessings of liberty for their posterity. Are the people of fifty states in 2010 bound by principles and applications that contradict those believed in 1787, especially when we have not ratified the constitution as it is forced upon us today? America’s history proves that even a written constitution does not adequately protect the freedoms of a people. James Madison admits this much in Federalist Paper 49 before the ratification of the constitution:

“Will it be sufficient to mark, with precision, the boundaries of these [federal] departments, in the constitution of the government, and to trust to these parchment [constitutional] barriers against the encroaching spirit of power?…[E]XPERIENCE ASSURES US, THAT THE EFFICACY OF THE PROVISION HAS BEEN GREATLY OVERRATED; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government…The conclusion which I am warranted in drawing from these observations is, that a MERE DEMARCATION ON PARCHMENT OF THE CONSTITUTIONAL LIMITS OF THE SEVERAL DEPARTMENTS, IS NOT A SUFFICIENT GUARD AGAINST THOSE ENCROACHMENTS WHICH LEAD TO A TYRANNICAL CONCENTRATION OF ALL THE POWERS OF GOVERNMENT IN THE SAME HANDS.” (Emphasis added).

Was Madison right on or what! Madison could not be clearer: limiting the federal government by a mere piece of paper does nothing to protect freedom. What effect do words have when their intended meaning and their forming principles are not complied with? As the Federal Supreme Court repeatedly said in its earlier opinions, “Let the nature and objects of our Union be considered; let the great fundamental principles on which the fabric stands be examined.” Cohens v. Virginia, 19 U.S. 264, 423 (1821). Indeed, something more the words is necessary to protect freedom.

Unfortunately, there are some (though I cannot judge their intentions necessarily) in the US who argue that the only lawful means by which the people of the states may redress federal grievances is through the (1) election, (2) judicial or (3) amendment processes. They argue as a basis for their position that whatever the federal government passes (through Congress), executes (through the President) and upholds (through the courts) is the “Supreme Law of the Land” and that the states are thus required by the US Constitution to submit to those laws, even if it is admitted that those laws are in fact unconstitutional and that those federal powers are exercised at the expense of the retained sovereign powers of the states and the people.

Any studier of political theory knows these advocates believe that the US Constitution places the decision of “what is constitutional” into the sole and exclusive purview of the Federal Supreme Court; that this court has the power to define not only the limits and powers of Congress and the President (not to mention its own powers) but also the power to define the lines of sovereignty of the states who created the federal government by their sovereign powers; that nine unelected, President-appointed, life-term judges possess a power equal to what the ratifiers placed into the hands of at least three-fourths of the states as mandated by the US Constitution. Without getting into the details of the fallacy of this position, which creates a dangerous oligarchic power in the federal court, destroys all principles of a free federal republic, contradicts principles of natural law, ignores the intention of the ratification documents of the states, and reduces the power of state sovereignty to mere state submission, let us consider what James Madison said in the Federalist Papers relative to what ingredients are actually required and necessary in a federal constitutional republic to protect the freedom of the people (note: James Madison was one of the proponents in the constitutional convention who actually proposed that the federal courts have a negative power over state laws contrary to the constitution, which was of course rejected in the convention):

Federalist Paper 51: “TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments [of the federal government], as laid down in the Constitution? …It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: [1] by creating a will in the community independent of the majority — that is, of the society itself; [2] BY COMPREHENDING IN THE SOCIETY SO MANY SEPARATE DESCRIPTIONS OF CITIZENS AS WILL RENDER AN UNJUST COMBINATION OF A MAJORITY OF THE WHOLE VERY IMPROBABLE, IF NOT IMPRACTICABLE.

“The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. THE SECOND METHOD WILL BE EXEMPLIFIED IN THE FEDERAL REPUBLIC OF THE UNITED STATES…[T]HE STABILITY AND INDEPENDENCE OF SOME MEMBER OF THE GOVERNMENT, THE ONLY OTHER SECURITY, MUST BE PROPORTIONATELY INCREASED.” (Emphasis added)

Madison notes that the only way a minority of the people and of the states can be protected against the tyrannical actions of the majority through the federal government is that minority’s stability and independence be maintained and that minority’s stability and independence be proportionally increased with the increase of the majority’s power and influence. Thus, a mathematical equation is created: The Minority’s (e.g. the states) stability and independence increases in direct proportion to the majority’s (e.g. the federal government) attempt to circumvent the minority’s freedom. Madison continues in this line of thought:

Federalist Paper 52: “[The] federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, BUT THAT IT WILL BE, MOREOVER, WATCHED AND CONTROLLED BY THE SEVERAL COLLATERAL [STATE] LEGISLATURES…With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other.” (Emphasis added)

Madison, as nationalistic-minded as he was in 1787, cannot escape the principle of states checking federal usurpations because it was so engrained into the conscience of the people and governments. Thomas Jefferson expresses the same principle of check and balance in a federal republic system: “the States should be watchful to note every material usurpation on their rights; denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary.” Thomas Jefferson and John P. Foley, ed., The Jeffersonian Cyclopedia, A Comprehensive Collection of the Views of Thomas Jefferson, (New York and London: Funk & Wagnalls Co., 1900), 133.

This application of state sovereignty was explained by James Madison in Federalist Paper 39, when he states, “[T]he [state] authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the [federal] authority, than the [federal] authority is subject to them, within its own sphere.” Nothing can be more provable in American jurisprudence: sovereignty necessarily carries with it the power to defend it. Yet, even today, after seeing the usurpations of the federal government for more than 150 years, there are still those who would deny the states their power to defend sovereignty and thus the freedom of their citizens.

This can mean only one thing: these people prefer a national system of government (as certain of our founders did and as did the Tories) over a federal system of government. That may be their choice, but did our ratifiers create a national system, whereby the states gave up their right to defend their powers? The answer is most certainly, No. The evidence expressed even by those who advocated for a national government (e.g. James Madison and Alexander Hamilton) in the Federalist Papers, not to mention the vast array of freedom documents forming our country, confirms this. Yet, constitutional (de)construction, through federal courts, supposedly has created the very form of government that our ratifiers rejected.

A decision must be made in 2010: Are states politically and legally incapable of governing themselves within their borders, or do they have the power and right to defend their sovereignty retained? Are the states subject to the tyrannical definitions and lines drawn by the federal government’s court as sole arbiter, or do they have the power to judge for themselves and defend their powers given to them by the people of that state? Are the states bound to live under a constitution that applies to them contrarily to the constitution ratified in 1787, or do they have the natural law and constitutional right to be governed by the principles of a free republic without interference from other government bodies and to perpetuate those principles for them and their posterity?

There is no neutral ground on this issue.

Those who advocate that the states MUST pass constitutional amendments to correct federal usurpations do not understand the first thing about living in freedom in a federal constitutional republic. Why should we–the non-aggressors–have to go through the arduous process of getting three-fourths of the states to correct federal abuses, when the federal government does not have the power or authority to act the way it does in the first place and are contradicting the limits we have already placed upon them? This line of thinking says, the federal government’s usurpations are valid and effective until the States pass a constitutional amendment stating otherwise. This effectively eliminates the usefulness of a written constitution, delegating only special and limited powers to a government, just as Madison explained.

How about this instead: a state can protect its own borders and powers by resisting and arresting federal tyranny, and if three-fourths of the states do not believe that state is correct in its defense of its powers, then let them pass a constitutional amendment limiting the states’ sovereignty in this regard. Giving the federal government (which our founders admitted and acknowledged would and should not comprise the vast majority of powers over the lives of the people) preference of sovereignty over the states contradicts the very structure and nature of our union in 1787, whereby the states possessed defendable concurrent power with the federal government–states who won their complete and absolute independence through a bloody and arduous seven years war, through the infinite pains and labors of millions and the lives of thousands of men, women and children. Any person or government that would have these states give up their powers and rights, when these states did not do so, commits treason against those states.

Freedom for a Change

Tim Baldwin is an attorney who received his Juris Doctor degree from Cumberland School of Law at Samford University in Birmingham, Alabama. He is a former felony prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a soon-to-be-published new book, entitled FREEDOM FOR A CHANGE. Tim is also one of America’s foremost defenders of State sovereignty. See his website.

Copyright (c) Timothy Baldwin, 2010.

“The several States composing the United States of America, are not united on the principle of unlimited submission to their General Government.”
–Thomas Jefferson

For the past few days, I’ve received loads of emails urging me to get active regarding the healthcare vote – most of which had a subject line similar to: “Last Chance to Stop National Healthcare!”

Well, if you believe the only way to protect your rights is by begging federal politicians to do what you want, then these emails are certainly right. The vote went as expected, and so will the next.

So if you think marching on D.C. or calling your Representatives, or threating to “throw the bums out” in 2010 or 2012 or 20-whatever, is going to further the cause of the Constitution and your liberty – you might as well get your shackles on now. Your last chance has come and gone.

But, those of you who visit this site regularly already know that the Senate’s health care vote is far from the end of things – and you also know that even when it goes into effect (which I assume some version will), it’s still not the end of the road for your freedom.

The real way to resist DC is not by begging politicians and judges in Washington to allow us to exercise our rights…it’s to exercise our rights whether they want to give us “permission” to or not.

Nullification – state-level resistance to unconstitutional federal laws – is the way forward.

When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as that state is concerned.

It’s peaceful, effective, and has a long history in the American tradition. It’s been invoked in support of free speech, in opposition to war and fugitive slave laws, and more. Read more on this history here.

Regarding nullification and health care, there’s already a growing movement right now. Led by Arizona, voters in a number of states may get a chance to approve State Constitutional Amendments in 2010 that would effectively ban national health care in their states. Our sources here at the Tenth Amendment Center indicate to us that we should expect to see 20-25 states consider such legislation in 2010.

20 States resisting DC can do what calling, marching, yelling, faxing, and emailing has almost never done. Stop the feds dead in their tracks.

For example, 13 states are already defying federal marijuana prohibition, and the federal government is having such a hard time dealing with it that the Obama administration recently announced that they would no longer prioritize enforcement in states that have medical marijuana laws.

Better yet, in the last 2+ years more than 20 states have been able to effectively prevent the Real ID Act of 2005 from being implemented. How did they do that? They passed laws and resolutions refusing to comply with it. And today, it’s effectively null and void without ever being repealed by Congress or challenged in court.

While the Obama administration would like to revive it under a different name, the reality is still there – with massive state-level resistance, the federal government can be pushed back inside its constitutional box. Issue by issue, law by law, the best way to change the federal government is by resisting it on a state level.

That’s nullification at work.

Over the years, wise men and women warned us that the Constitution would never enforce itself. The time is long overdue for people to start recognizing this fact, and bring that enforcement closer to home.

The bottom line? If you want to make real change; if you want to really do something for liberty and for the Constitution…focus on local activism and your state governments.

Thomas Jefferson would be proud!

Michael Boldin is the founder of the Tenth Amendment Center

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

This summer, legislators from several states met to discuss the steps needed to restore our Constitutional Republic. The federal government has ignored the many state sovereignty resolutions from 2009 notifying it to cease and desist its current and continued overreach. The group decided it was time to actively counter the tyranny emanating from Washington D.C.

From those discussions it became clear three things needed to happen.

1. State Legislatures need to pass 10 key pieces of legislation “with teeth” to put the federal government back in its place.
2. The people must pass the legislation through the Initiative process if any piece of the legislative agenda fails.
3. County Sheriffs must reaffirm and uphold their oaths to protect and defend the Constitution of the United States.

With the advent of the Tea Party Movement, many people have been asking how exactly we can make the above reality. What follows is Part I of the outline of that plan regarding state legislation, the action steps any concerned citizen can take to see this legislation to fruition, and the brief history and justifications behind each.

Step 1: Reclaim State Sovereignty through Key Nullification Legislation

Our Constitutional Republic is founded on a system of checks and balances known as the “separation of powers.” Rarely, however, are the states considered part of this essential principle.

Enter the “doctrine of nullification.”

Nullification is based on the simple principle that the federal government cannot be the final arbiter of the extent and boundaries of its own power. This includes all branches of the federal government. In the law this is known as a “conflict of interest.”

Additionally, since the states created the federal government the federal government was an agent of the states; not the other way around. Thus, Thomas Jefferson believed that, by extension, the states had a natural right to nullify (render as of no effect) any laws they believed were unconstitutional.

In the Kentucky Resolutions of 1798 he wrote,

“co-States, recurring to their natural right…will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shalt be exercised within their respective territories.”1

Alexander Hamilton echoed this sentiment in Federalist #85 “We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.” 2

It is clear then that State Legislatures can stop the unconstitutional overreach of the Obama administration through nullification. Here is a list of proposed nullification legislation to introduce in all 50 States.

1. Nullification of Socialized Health Care [current efforts] [example legislation]
2. Nullification of National Cap and Trade [example legislation]
3. Federal Enumerated Powers Requirement (Blanket Nullification) [details]
4. Establishment of a Federal Tax Escrow Account [example legislation]

If imposed, socialized health care and cap and trade will crush our economy. These programs are both unconstitutional, creating government powers beyond those enumerated by the Constitution. If those programs are nullified, it will give the individual states a fighting chance to detach from a federal budget in freefall and save the economies of the individual states.

Next, blanket nullification.

The Federal Government, particularly the House of Representatives, needs to abide by its own rules. In particular, House Rule XIII 3(d) specifically states that:

“Each report of a committee on a public bill or public joint resolution shall contain the following: (1) A statement citing the specific powers granted to Congress in the Constitution to enact the law proposed by the bill or resolution.” 3

Needless to say, this rule is generally ignored. The idea behind blanket nullification is that if the Congress does not specify the enumerated power it is using according to its own rules, or the power specified is not one of the enumerated powers granted to Congress in the United States Constitution, then the “law” is automatically null and void.

Lastly, the federal government cannot survive without money. I know that seems obvious but many states are missing the opportunity to use money as an incentive for the federal government to return to its proper role. Most visibly, states help collect the federal portion of the gasoline tax. That money should be put into an escrow account at the state level and held there. The Escrow Account legislation includes a provision that all consumer, excise, and income taxes payable to the federal government would go through this account first. This would do two things. First, it would give states the ability to collect interest on that money to help offset revenue shortfalls. Second, it would allow states to hold that money as long as needed as an incentive for the federal government to return within the enumerated boundaries of its power.

Step 2:   Erect an impenetrable wall around the County Sheriff and the 2nd Amendment.

As recently stated in the famous Heller opinion by the United States Supreme Court, the right to bear arms “is an individual right protecting against both public and private violence” and “when the able-bodied men of a nation are trained in arms and organized they are better able to resist tyranny.” 4

Thus, it is clear that the 2nd Amendment not only protects the right to self-defense but that right extends to defending oneself against tyranny. As with any historical attempt to establish a dictatorship weapons must be seized or severely regulated. 5

Here is a list of legislation to prevent this from happening, some of which has already been introduced in states around the country:

• Sheriff First [model legislation]
• Extension of the Castle Doctrine (right to protection) [sample legislation]
• Prohibition of Gun and Ammunition Tracking [see above]
• Firearms Freedom Act [current efforts] [model legislation]

The county Sheriff is the senior law enforcement officer both in terms of rank and legal authority in a county. This comes from a tradition of over 1000 years of Anglo-Saxon common law. Anglo-Saxon communities were typically organized into “shires” consisting of approximately 1000 people. 6

The chief law enforcement officer of the shire was the “reeve” or “reef.” Hence, the modern combination of the two words, as we know them today, “shire reef” or “Sheriff.” 7

Consequently, the Sheriff’s pre-eminent legal authority is well established. This was confirmed in Printz v. United States. 7    Justice Scalia quotes James Madison who wrote in Federalist 39:

“In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere.”9

Sheriff 1st legislation would formally declare that all federal agents and officers must give notice of, and seek permission before, any arrest, search, or seizure occurs. Thus, federal agents and officers seeking to enforce unconstitutional laws must go through the county Sheriff first.

Extending the castle doctrine to one’s person would go a long way toward eliminating the arbitrary “no carry” areas. Like Virginia Tech, it is these areas where guns for self-defense are most needed.

Many gun and ammunition tracking schemes have been, and are still being, attempted. The intended purpose of “reducing gun related” crime is never realized. Instead, law-abiding citizens are punished with regulatory burdens and fees. Quite simply we need transparency in government not in the people.

Montana started the firearms freedom act to rein in the federal government’s use of the Commerce Clause to regulate everything within the stream of commerce. The original intent of the Commerce Clause was to regulate commerce between states not within states as Professor Rob Natelson points out in his 2007 Montana Law Review article.10

The Montana FFA simply returns to that original understanding regarding firearms made, sold, and kept within a state’s borders.

This list is by no means exhaustive. However, it does contain some immediate steps that can be taken toward freedom and restoring our God honoring Constitutional Republic. Hitler’s laws of January 30 and February 14, 1934, should serve as a stark reminder of what happens when state sovereignty is abolished.

In the coming few weeks I will publish the next part of the plan.

Matthew Shea [send him email] is a State Representative in Washington’s 4th District. He’s the author of HJM4009 for State Sovereignty.  Visit his website.

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

NOTES:

Friend of the Tenth Amendment Center, and executive director of the Liberty Restoration Project, Catherine Bleish, speaking on State Sovereignty at the St. Charles (MO) Tea Party in October, 2009.

Visit her website at http://donttreadoncat.com/