EDITOR’S NOTE: Nullify Now! presents a special tribute to human freedom with the story of Joshua Glover. Learn about resistance to slavery in one of history’s greatest acts of nullification – and how it applies to events today – in Cincinnati, Ohio on March 5, 2011 – get tickets and information here – or by calling 888-71-TICKETS

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It was all About States’ Rights – Northern States’ Rights

The Underground Railroad was a metaphor. Yet many textbooks treat it as an official name for a secret network that once helped escaping slaves. The more literal-minded students end up questioning whether these fixed escape routes were actually under the ground. But the phrase “Underground Railroad” is better understood as a rhetorical device that compared unlike things for the purpose of illustration. In this case, the metaphor described an array of people connected mainly by their intense desire to help other people escape from slavery. Understanding the history of the phrase changes its meaning in profound ways.

Even to begin a lesson by examining the two words “underground” and “railroad” helps provide a tighter chronological framework than usual with this topic. There could be no “underground railroad” until actual railroads became familiar to the American public–in other words, during the 1830s and 1840s. There had certainly been slave escapes before that period, but they were not described by any kind of railroad moniker. The phrase also highlights a specific geographic orientation. Antebellum railroads existed primarily in the North–home to about 70 percent of the nation’s 30,000 miles of track by 1860. Slaves fled in every direction of the compass, but the metaphor packed its greatest wallop in those communities closest to the nation’s whistle-stops.

Looking into the phrase “Underground Railroad” also suggests two essential questions: who coined the metaphor? And why would they want to compare and inextricably link a wide-ranging effort to support runaway slaves with an organized network of secret railroads?

The answers can be found in the abolitionist movement. Abolitionists, or those who agitated for the immediate destruction of slavery, wanted to publicize, and perhaps even exaggerate, the number of slave escapes and the extent of the network that existed to support those fugitives. According to the pioneering work of historian Larry Gara, abolitionist newspapers and orators were the ones who first used the term “Underground Railroad” during the early 1840s, and they did so to taunt slaveholders (1). To some participants this seemed a dangerous game. Frederick Douglass, for instance, claimed to be appalled. “I have never approved of the very public manner in which some of our western friends have conducted what they call the underground railroad,” he wrote in his Narrative in 1845, warning that “by their open declarations” these mostly Ohio-based (“western”) abolitionists were creating an “upperground railroad”(2).

Publicity about escapes and open defiance of federal law only spread in the years that followed, especially after the controversial Fugitive Slave Act of 1850. Anxious fugitives and their allies now fought back with greater ferocity. Douglass himself became more militant. In September 1851, he helped a former slave named William Parker escape to Canada after Parker had spearheaded a resistance in Christiana, Pennsylvania that left a Maryland slaveholder dead and federal authorities in disarray. The next year in a fiery speech at Pittsburgh, the famous orator stepped up the rhetorical attack, vowing, “The only way to make the Fugitive Slave Law a dead letter is to make half a dozen or more dead kidnappers” (3). This level of defiance was not uncommon in the antislavery North and soon imperiled both federal statute and national union. Between 1850 and 1861, there were only about 350 fugitive slave cases prosecuted under the notoriously tough law, and none in the abolitionist-friendly New England states after 1854 (4). White Southerners complained bitterly while abolitionists grew more emboldened.

Yet students often seem to imagine runaway slaves cowering in the shadows while ingenious “conductors” and “stationmasters” devised elaborate secret hiding places and coded messages to help spirit fugitives to freedom. They make few distinctions between North and South, often imagining that slave patrollers and their barking dogs chased terrified runaways from Mississippi to Maine. Instead, the Underground Railroad deserves to be explained in terms of sectional differences and the coming of the Civil War.

One way to grasp the Underground Railroad in its full political complexity is to look closely at the rise of abolitionism and the spread of free black vigilance committees during the 1830s. Nineteenth-century American communities employed extra-legal “vigilance” groups whenever they felt threatened. During the mid-1830s, free black residents first in New York and then across other Northern cities began organizing vigilant associations to help them guard against kidnappers. Almost immediately, however, these groups extended their protective services to runaway slaves. They also soon allied themselves with the new abolitionist organizations, such as William Lloyd Garrison’s Anti-Slavery Society. The most active vigilance committees were in Boston, Detroit, New York, and Philadelphia led by now largely forgotten figures such as Lewis Hayden, George DeBaptiste, David Ruggles, and William Still (5). Black men typically dominated these groups, but membership also included whites, such as some surprisingly feisty Quakers, and at least a few women. These vigilance groups constituted the organized core of what soon became known as the Underground Railroad. Smaller communities organized too, but did not necessarily invoke the “vigilance” label, nor integrate as easily across racial, religious and gender lines. Nonetheless, during the 1840s when William Parker formed a “mutual protection” society in Lancaster County, Pennsylvania, or when John Brown created his League of Gileadites in Springfield, Massachusetts, they emulated this vigilance model.

These committees functioned more or less like committees anywhere—electing officers, holding meetings, keeping records, and raising funds. They guarded their secrets, but these were not covert operatives in the manner of the French Resistance. In New York, the vigilance committee published an annual report. Detroit vigilance agents filled newspaper columns with reports about their monthly traffic. Several committees released the addresses of their officers. One enterprising figure circulated a business card that read, “Underground Railroad Agent” (6). Even sensitive material often got recorded somewhere. A surprising amount of this secret evidence is also available for classroom use. One can explore letters detailing Harriet Tubman’s comings and goings, and even a reimbursement request for her worn-out shoes by using William Still’s The Underground Railroad (1872), available online in a dozen different places, and which presents the fascinating materials he collected as head of the Philadelphia Vigilance Committee. Anyone curious about how much it cost to help runaways can access the site where social studies teacher Dean Eastman and his students at Beverly High School have transcribed and posted the account books of the Boston vigilance committee. And the list of accessible Underground Railroad material grows steadily (7).

But how did these Northern vigilance groups get away with such impudence? How could they publicize their existence and risk imprisonment by keeping records that detailed illegal activities? The answer helps move the story into the 1840s and 1850s and offers a fresh way to for teachers to explore the legal and political history of the sectional crisis with students. Those aiding fugitives often benefited from the protection of state personal liberty laws and from a general reluctance across the North to encourage federal intervention or reward Southern power. In other words, it was all about states’ rights—Northern states’ rights. As early as the 1820s, Northern states led by Pennsylvania had been experimenting with personal liberty or anti-kidnapping statutes designed to protect free black residents from kidnapping, but which also had the effect of frustrating enforcement of federal fugitive slave laws (1793 and 1850). In two landmark cases –Prigg v. Pennsylvania (1842) and Ableman v. Booth (1859)—the Supreme Court threw out these Northern personal liberty protections as unconstitutional.

Students accustomed to equating states’ rights with South Carolina may be stunned to learn that it was the Wisconsin Supreme Court asserting the nullification doctrine in the mid-1850s. They may also be shocked to discover that a federal jury in Philadelphia had acquitted the lead defendant in the Christiana treason trial within about fifteen minutes. These Northern legislatures and juries were, for the most part, indifferent to black civil rights, but they were quite adamant about asserting their own states’ rights during the years before the Civil War. This was the popular sentiment exploited by Northern vigilance committees that helped sustain their controversial work on behalf of fugitives.

That is also why practically none of the Underground Railroad agents in the North experienced arrest, conviction, or physical violence. No prominent Underground Railroad operative ever got killed or spent significant time in jail for helping fugitives once they crossed the Mason-Dixon Line or the Ohio River. Instead, it was agents operating across the South who endured the notorious late-night arrests, long jail sentences, torture, and sometimes even lynching that made the underground work so dangerous. In 1844, for example, a federal marshal in Florida ordered the branding of Jonathan Walker, a sea captain who had been convicted of smuggling runaways, with the mark “S.S.” (“slave-stealer”) on his hand. That kind of barbaric punishment simply did not happen in the North.

What did happen, however, was growing rhetorical violence. The war of words spread. Threats escalated. Metaphors hardened. The results then shaped the responses the led to war. By reading and analyzing the various Southern secession documents from the winter of 1860-61, one will find that nearly all invoke the crisis over fugitives (8). The battle over fugitives and those who aided them was a primary instigator for the national conflict over slavery. Years afterward, Frederick Douglass dismissed the impact of the Underground Railroad in terms of the larger fight against slavery, comparing it to “an attempt to bail out the ocean with a teaspoon” (9). But Douglass had always been cool to the public value of the metaphor. Measured in words, however —through the antebellum newspaper articles, sermons, speeches, and resolutions generated by the crisis over fugitives—the “Underground Railroad” proved to be quite literally a metaphor that helped launch the Civil War.

Matthew Pinsker is Associate Professor of History and Pohanka Chair in American Civil War History at Dickinson College. He has written two books about Abraham Lincoln and currently is working on a book about the Underground Railroad.

NOTE: This article was originally published in the December, 2010 issue of History Now from the Gilder Lerhman Institute of American History. It’s re-published here with permission of the author and History Now.

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(1) Larry Gara, The Liberty Line: The Legend of the Underground Railroad (1961; Lexington: University Press of Kentucky, 1996), 143-4.
(2) Frederick Douglass, Narrative of the Life of Frederick Douglass: An American Slave (Boston: Anti-Slavery Office, 1845), 101 (http://www.docsouth.unc.edu/neh/douglass/douglass.html). 
(3) Frederick Douglass, “The Fugitive Slave Law: Speech to the National Free Soil Convention in Pittsburgh,” August 11, 1852 (http://www.lib.rochester.edu/index.cfm?PAGE=4385). 
(4) See the appendix in Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law: 1850-1860 (New York: W.W. Norton, 1970), 199-207.
(5) Out of these four notable black leaders, only David Ruggles has an adult biography available in print –and it was published this year. See Graham Russell Gao Hodges, David Ruggles: A Radical Black Abolitionist and the Underground Railroad in New York City (Chapel Hill: University of North Carolina Press, 2010).
(6) Jermain Loguen of Syracuse, New York. See Fergus M. Bordewich, Bound for Canaan: The Underground Railroad and the War for the Soul of America (New York: HarperCollins, 2005), 410.
(7) For these materials and others, visit the Additional Resources Page (below).
(8) See secession documents online at The Avalon Project from Yale Law School
(http://avalon.law.yale.edu/subject_menus/csapage.asp).
(9) Frederick Douglass, Life and Times of Frederick Douglass (Hartford, CT: Park Publishing, 1881), 272 (http://docsouth.unc.edu/neh/douglasslife/douglass.html).

In January, hotair.com reported on Idaho and other states introducing laws to nullify Obamacare.   Then, Phineas at Sister Toldjah promoted his hotair comments into a blog post, Nullification: a bad idea.  I’ve been debating in comments there, and now will follow suit, also promoting my own comments into a blog post.  I would like to make note of how courteous Phineas has been in the comments.  It is nice to see that even on the web, people can disagree respectfully.

In the post and its comments, many of the usual claims are raised.  Namely,

• Nullification would create a patchwork of laws, rendering national governance impossible.
• Nullification was a factor in the lead-up to the Civil War.
• The Constitution grants no authority for the states to nullify.
• The Civil War proved that nullification is not an option.
• The supremacy clause means that the federal government is superior to the state government.

Some of these lines of argument are so common that I have decided to begin a Tenth Amendment FAQ to have a place to refer people to find the rebuttal for all of the standard arguments.  This is a work in progress, so if you would like to contribute content for questions and/or answers, please use the contact form to e-mail us your suggestions.  Phineas also made the more unusual argument that when Jefferson and Madison penned the Kentucky and Virginia Resolutions, fourteen other states declined to support them in their opposition to the Alien and Sedition acts.

So here are my comments and some other material to provide context.  Please go read the whole article and the other comments at Sister Toldjah.  My first two comments were in response to these points from Phineas’ article.

Beyond any argument about the history of nullification, the idea itself is hare-brained. To allow it would create a crazy-quilt of federal law that would turn the concept of national government and nationwide rule-of-law a joke.

AND

And I’m not being facetious here. Creating an “opt-out provision” whereby some states can say the equivalent of “nuh-uh” is a recipe for chaos. One just has to look at the history of the enforcement of fugitive slave laws to see what mischief this would work. (And, no, I’m not endorsing those laws. But the refusal of some states to enforce them did contribute to the deteriorating political climate that preceded the Civil War.)

Those points led me to submit the following comments…

Steve Palmer says:

January 22, 2011 at 11:14 pm

I don’t comment at hotair because they require registration, but here’s an article I wrote to address the concern about nullification leading to a patchwork of regulation – LINK.  In short, I think that over time, nullification leads to a consensus interpretation of the constitution instead of a dictatorial one.  Please follow the link for a more detailed explanation.

AND

Steve Palmer says:

January 23, 2011 at 12:00 am

Sorry to follow myself, but while rereading your article, I became intrigued by another point.  Please clarify… are you actually saying that the northern states should not have nullified the federal fugitive slave acts in the 1800s?  If so, I’d really like you to elaborate on that line of reasoning!

I would argue that the “mischief”, as you put it, was the fugitive slave acts (and slavery, itself), not the nullification thereof.  I also have an article on that subject here – LINK

It is important to understand that the nullifiers with regards to slavery were the northern states, not the southern ones.  I am convinced that the northern states were exactly right to nullify the abominable federal fugitive slave acts.  I am very curious to hear your line of reasoning to the contrary.

To my question about whether the northern states should have refrained from nullifying the federal fugitve slave acts, Phineas responded,

January 23, 2011 at 6:36 pm

No, I was just looking for an example of the problems that can be caused by nullification, and that one came to mind.  Probably not the best one to use.

I followed up with this comment,

Steve Palmer says:

January 24, 2011 at 9:49 pm

So it was OK for the states to nullify the Fugitive Slave Act because that law was tyrannical, but it’s not OK for the states to nullify Obamacare because… ? Slavery=bad, death panels=”live with it”?

(quote from original post)

“To allow it would create a crazy-quilt of federal law that would turn the concept of national government and nationwide rule-of-law a joke.”

In addition to my link from yesterday, here’s another line of argument as to why a “crazy-quilt of federal law” might not be such a bad thing. Even in the short run – from young americans for liberty – LINK.  Anyway, I thought conservatives supported federalism?

In the long run, the states and the federal government would eventually negotiate and reach consensus over their disputes… the important ones, anyway.  We would have 50 states negotiating and competing with the supreme court instead of 5 unelected dictators deciding for 300 million people.

No one is saying that states can run around willy-nilly, nullifying any law they feel like, but when a law is unconstitutional, the states have no obligation to enforce it.  Even the Supreme Court agreed with that fact in Prigg vs Pennsylvania, 1842.

As to your argument about fourteen states disagreeing with Madison and Jefferson, the example is incomplete.  You are correct insofar as the states were always opportunistic in their support of nullification.

For example, Pennsylvania opposed it for the Alien & Sedition acts in 1798, but supported it against the central bank in 1811 and against slavery from the 1820s until the civil war.

I think if you read Woods’ book, Nullification (with an open mind), you might be persuaded to reconsider your position.

Which drew this response from Phineas,

January 24, 2011 at 10:22 pm

Hi Steve,

I haven’t read Woods’ book.  I should, since it’s an interesting topic.  In fact, I’d be interested to read his opinion of this quote from Madison, himself, denying that nullification resolutions have any force of law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge.  The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.  The expositions of the judiciary, on the other hand, are carried into immediate effect by force.  The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration?  What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens.  This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

That’s quoted in a post by Law Professor Randy Barnett, author of the Bill of Federalism and no slouch on state’s rights.  Madison wrote those words in defense of the KV Resolutions, which had been rejected by all the other states.  Now, if he said these have no force of law (indeed, he supports your point about building consensus), then I would need a lot to convince me that nullification (as opposed to the rendering of an opinion via a resolution) is among one of the reserved powers.

My response,

Steve Palmer says:

January 24, 2011 at 10:57 pm

Hi Phineas,

This appears to have been Woods’ reply to that post from Professor Barnett – http://www.lewrockwell.com/woods/woods147.html

And this seems to be the relevant paragraph,

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 4 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?

Here is Madison’s report, which both of them mention – http://www.constitution.org/rf/vr_1799.htm

I’m surprised Woods’ didn’t mention this, but I just took a quick look.  Barnett was apparently careless in selecting his quote.  Madison’s report is organized in sections.  Barnett’s quote is near the end of the document, in a section dedicated to the last two of the Virginia Resolutions. Those resolutions were the ones asking the other states to pass similar resolutions and asking the governor to take the topic up with other governors. Obviously, Virginia’s resolutions on those topics cannot take the form of law when the resolutions’ objects reside in other states.

I didn’t want to get carried away, so left this out of the discussion at Sister Toldjah, but I also thought this excerpt from the Woods link above was a particularly compelling response to the Barnett article.

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?

Steve Palmer [send him email] is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

The Tenth Amendment got a breath of life when the Tea Party uprising proved to be successful in the November midterm elections, bringing in many candidates who, while mostly Republican, where not on board with the mainstream Republican agenda. Many were supporters of the Tenth Amendment and States’ Rights and going forward in 2011, we’re seeing some results already.

Maine has joined other states, including Wyoming and Montana, in introducing legislation that would reject the controversial Patient Protection and Affordable Care Act of 2010, more commonly known as “Obamacare.” And while the State Legislators press forward standing up for the cause of local governance and the balance of government, the media unites under the usual cause of defending the Federal Government. This time, it’s the war on nullification.

Here in Maine, Democrats have been criticizing the idea (as noted in previous articles by the Maine Tenth Amendment Center), but they have obviously forgotten that it was their party who introduced Maine to the concept of nullification. It was not the Republicans who stood up against an unconstitutional law that would unload a significant financial burden on Maine (although many Republicans did join in), it was a Democratic Legislature that sought to nullify the REAL ID Act of 2005. Why are things different now? Because their team now has the top spot in the Federal Government?

Sahil Kapur of Raw Story and Ezra Klein of the Washington Post wasted no time recently in going after Wyoming for their introduction of Legislation, sponsored by ten State Representatives and three State Senators, that would nullify the controversial healthcare law.

Kapur writes in an article for Raw Story:

Even if the legislation is approved, it won’t survive in the courts as states cannot override or subvert federal law. But the symbolism of the effort reflects just how intense conservative animus against the reforms has become, as House Republicans prepare for a vote to repeal the law.

Similar to the liberal animus against George W. Bush with REAL ID? Regardless, this is not your typical conservative group of politicians in the various State Legislatures. Conservatives have, like liberals, in the past subscribed to the idea that our representative government is at the mercy of unelected judges and an unrestricted executive, while lower levels are merely administrative units with no power beyond execution of the higher will. The idea of nullification is not exclusive to any wing on a political spectrum or to any one polarizing party; Maine shows this through its nullification of REAL ID under Democrats and now the attempt to nullify the healthcare reform law under Republicans. It’s an American idea.

There was a reason there was a division of power in the government. But there was also a reason there was a Federal Government. Liberals often swing back at the point that our Founders feared a strong government, by stating that the weak government concept had failed under the Articles of Confederation. It did, but that’s why we have a cooperative government where the various branches and levels have their assigned areas. We’re not a dictatorship; the lifetime lawyers who face no election do not rule us, nor does the executive and all of his unelected cronies. If this were the case than having a Congress, State Legislatures, or any other part of our representative government, would be pointless. We wouldn’t need it, because the executive could pass down his orders and the lawyers next door would affirm it, without respect to laws or the Constitution that provides for the structure of our government. But this is not the case.

Ezra Klein goes further to state in a Washington Post article:

Given the extremism of the rhetoric at the top, is it any wonder that there is incredible fear trickling down to the grass roots? If those are the stakes, then of course criminalizing any implementation of the bill makes sense. Frankly, if those are the stakes, then violent resistance might be required.

Advocating violence against nullification? Sounds strangely similar to Alexander Hamilton’s response to the resolutions passed in Kentucky and Virginia in response to the Alien and Sedition Acts, when he suggested building up the troops and testing the resistance of Virginia. It’s unfortunate to see those attempting to restore the balance of our representative government met with opposition that sometimes suggests violence.

Now Christopher Weaver at NPR has joined the bandwagon of opposition, this time specifically putting its aim on Maine. Here are some points from the article:

Shortly after the midterm election, Trish Riley, the defeated Democratic governor’s top health adviser, told us Maine officials envisioned a health reform rollout that would in some ways be “more robust than Massachusetts.” Now, at least some newly empowered conservative lawmakers are pushing to make the realization of that vision a crime.

It would be in Riley’s worst interest in defending healthcare reform, to bring up former Governor John Baldacci’s track record with it. Dirigo Health, the controversial State program, has not been the standard of government healthcare that it was hyped up to be. Instead, it has been a financial failure and has not come close to insuring as much citizens as it’s advocates had promised.

The article also states:

These aren’t novel moves for state-level health law opponents. Before the law even passed, local legislators in all but a dozen states had introduced or passed legislation to erect health overhaul hurdles, USA Today reported last year. But adding jail time ups the ante.

So it’s alright for the Federal Government to throw citizens in prison for not cooperating with an unconstitutional mandate that is absolutely unamerican, but not for the State Legislators to defend their citizens against unlawful exercising of power?

And then in the article, the writer goes after Maine State Representative Richard Cebra, a Republican from Naples. Representative Cebra is the one who introduced LD 58, “An Act To Prohibit Enforcement of the Federal Patient Protection and Affordable Care Act.” He is not, as the media suggests, playing partisan politics as the Republicans rally against a bill, supposedly only because it was a Democratic piece of legislation. Previously, Rep. Cebra has sought to introduce a State Sovereignty Resolution, but it was quickly voted down by the Democrats who had then controlled the Legislature. Democrats voting down a States’ Rights resolution just a couple years after being the leader in a nullification movement against a Republican president sounds more like politics-as-usual, than the Republicans. But the point is, Rep. Cebra has great intentions, not political ones.

AsMaineGoesLolz.com, a site that portrays itself as being the opposite of popular Maine website As Maine Goes, which it accuses of being conservative, has also gone after LD 58. The staunchly-partisan website takes a couple shots in this article:

Look: Whether or not the ACA is constitutional isn’t even important when considering this law. This law is illegal even IF the ACA is later found to be unconstitutional. Why? Because the court system is the final arbiter. States can’t just decide which Federal laws to follow and which they won’t.

Not according to two key Founding Fathers who were instrumental in the creation of our country. Thomas Jefferson, the principle author of the Declaration of Independence had introduced resolutions in Kentucky in both 1798 and 1799. James Madison, the principle author of the Constitution, had introduced a resolution in 1798. All three of these resolutions had affirmed that any law in violation of the Constitution is null and void. For those who claim constitutionality of Congressional acts vary by interpretation, the Constitution is very straightforward with the powers of Congress. Article 1, Section 8 lists the specifically enumerated powers of Congress, while the Tenth Amendment states that Congress can do nothing more than that.

But the title of the article, “These Maine Legislators Don’t Understand How America Works,” is all wrong. For as shown in the previous paragraph, the Maine Legislators, just as Jefferson and Madison did, have it all right. It’s Kapur, Klein, Weaver, and AsMaineGoesLolz, who don’t understand how America was designed to work.

So the critics of Mr. Cebra and the co-sponsors of LD 58 and of other States: on behalf of every educated Tenther, please open up a Constitution and read it.

Chris Dixon [send him email] is the state chapter coordinator for the Maine Tenth Amendment Center. He is also a writer for Maine Web News.

Copyright © 2011 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Anytime there is any constitutional amendment proposed the first thing everyone needs to think about is basic. As Constitution Scholar Gary Alder says, “When you change your constitution you are altering your form of government.” He further states, “I can’t help but think that when amendments are proposed as readily hastily as they are these days without regard to the ramifications of those changes, it is like two doctors arguing that their method of performing a complicated operation is best—one because it takes less time and the other because it leaves a smaller scar—rather than sitting down together and discussing the interrelationship between the circulatory and respiratory systems and how the proposed operation can be performed without damaging either system. NO AMENDMENT SHOULD EVER be HASTILY DRAFTED or ONLY SUPERFICIALLY EXAMINED.”

There is a good argument the first ten amendments to the U.S. Constitution did not alter the form of government as Madison originally identified areas within the Constitution to add what we now refer to as the Bill of Rights. However, every amendment since then has impacted our form of government, most in a negative way (19^thAmendment, however ladies, was a good one).

In a move that the amendment’s author, Georgetown University Law Professor Randy Barnett, says will help restore the authority reserved to the states it initially appears this might be a good amendment. “This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states,” Barnett was quoted as saying by Andrea Stone. “Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.”

The Repeal Amendment is short and to the point, something indicative of a possibly good change. It does not have the infamous words that have haunted so many amendments since reconstruction, “Congress shall have power to enforce this article by appropriate legislation.” The text simply states;

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

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Knowing the growing pressure in many states to revive support for the 10^th Amendment it is easy to understand why this is gaining such a positive response in Tea Party circles. Since being submitted Tuesday by Rep. Rob Bishop (R-UT) it has gained a lot of steam early. Rep. Bishop, founder of the 10^th Amendment Task Force, called it a weapon in states’ quivers and alluded to this being one of several proposals to come. “I actually hope to have a series of statutes and amendments — several amendments and several statutes — that we can introduce this year,” Bishop said, “with the sole goal of not just cutting down the power of Washington to do things to people, but more importantly, is to empower states.”

Is it easier to empower states by creating a series of new changes to our form of government or to use the same passion, energy, and effort to repeal errors of past changes? Also, are we to believe Rep. Bishop, Cantor (R-VA), and other D.C. representatives when they say this amendment will check federal government while restoring power to the states and people as it was meant to be? Of course we are to believe this is the easiest and best way to restore order, after all these are Tea Party backed, grassroots politicians proposing these changes so we know it is OK to trust in their proposals, don’t we? As a matter of fact, we should be rallying at capital steps across the country with big signs and cheering grand cheers to our new defenders and their saving amendment…repeal~repeal~amending federal power~repeal~repeal~such an easy deal!

Excuse me if I sound a wee bit skeptical Rep. Bishop and Rep. Cantor. First, the repeal process, outlined in the amendment, does not consider one of the fundamental aspects of federalism our founders developed. It was a part of Article VI, Clause 2 and it was a necessary part for both vertical separations of powers and sound checks to work. Yes, I am referring to the often court abused, media misconstrued area commonly known as the Supremacy Clause. Before you jump up and down and scream this Wood fellow has no clue what he’s typing about I fully understand only federal legislation 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.” The key word, Pursuance, was so important it was capitalized (our framers equivalent to bold type today).

Second, the amendment requires 33 (34 if you round up) states to be opposed to an item. What will this do for the important state mechanism the 10^th Amendment does help illuminate, the Doctrine of Interposition? With the common threat of nullification of unconstitutional laws, would this be all but negated by the repeal amendment? If the 2/3 rule is not met then all states would be stuck with an unconstitutional law. Historically, far less than 2/3 of states have adopted the same Resolutions of Interposition and yet the federal, or general, government has backed down in challenges to their wayward laws. True 10^th Amendment stances, based on sound nullification doctrine, works even today. Medical marijuana is just one of many growing examples of this.

What about laws passed by the general government that are constitutional, based on the original meaning? If enough states can rise against constitutional laws they too can be overturned, whether passed ‘in Pursuance thereof’ or not. This amendment truly alters the vertical checks and balance provided under the original meaning. In theory this amendment could weaken the federal level to a point of it being little more than it was under the Articles of Confederation. Although the federal government is far too large and intrusive today we will not find ourselves ‘securing the Blessings of Liberty to ourselves and our Posterity’ by turning the dial that far back.

Is it really time to completely alter our form of government or, again, would it be better if all these efforts were focused on restoring original meaning before completely changing it? Would Madison embrace such a departure? I don’t believe he would yet I am quite confident he would fully support the restoration of today’s 10^th Amendment efforts and the Doctrine of Interposition. My confidence stems from his words, written in Jan. 1800 as part of his Report on the Virginia Resolutions in which he was defending his resolution rejected by other states. He wrote no truer words, words Rep. Bishop and Rep. Cantor should still be holding true to if they are as ardent defenders of the sovereignty of the states and our 10^th Amendment as they seem to be.

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.

Ken Ivory further reminds us of the words of Thomas Jefferson, written in 1791 to Archibald Stuart;

It is important to strengthen the State governments, and as this cannot be done by change in the Federal Constitution (for the preservation of that is all we need contend for), it must be done by States themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the General Government. The only barrier in their power is a wise government. A weak one will lose ground in every contest.

Gary Wood is the Educational Advisor for the Utah Tenth Amendment Center. Co-founder of the Heritage Training Center, focused on helping end constitutional illiteracy. With 35 years of devoted study of our Constitution his desire is to help others rediscover the inspiring heritage of the United States. Radio show host, training officer, lifetime member of the VFW and most importantly Grandpa.

The following is based off a speech given at Nullify Now! Orlando on 10-10-10

Isn’t it incredible that, despite all the historical evidence to the contrary, that anyone can still believe that the founders would’ve fought a long, cruel, bloody war just to exchange one central, overpowering government for another? And yet, these guys sitting on the courts want to define the limits of our freedom for the extension of greater government control. That is not the founders’ legacy. That’s not why we’re here today.

For these out of touch elitists, the Bill of Rights is just a historical curiosity – it’s quaint and doesn’t mean anything. But we know that the Bill of Rights is the very essence of state sovereignty. That’s why it was created, and that wasn’t lost on the founders.

In fact, at the North Carolina ratifying convention Samuel Spencer said, “It appears to me that the state governments are not sufficiently secured and that they may be swallowed up by the great mass of powers given to congress.” Was that prophetic? Just look what we have today…

Oliver Ellsworth from Connecticut said, “The United States are sovereign on their side of the line of divided jurisdictions, the states on the other. Each ought to have the power to defend their respective jurisdictions.”

Another of our Yankee brethren, Mr Williams says “Are not the terms common defense and general welfare indefinite and undefinable terms? What checks have the state governments against such encroachments?” And that’s the questions we’re facing again today – what checks do the states have against such encroachments? The encroachments are out there, and they’re in our face every day. From Real ID to national health care and everything in between.

Clearly, the 10th Amendment was never intended to be a throwaway or a quaint relic. Its necessity in creation was brought about by clear and deliberate decision – by people who stingily delegated their sovereign authority to this limited powers agent they were creating. In our work here today, we’re dedicated to the repeal or nullification of all unconstitutional legislation that has been illegally imposed upon us by the general government.

All of us need to work together so we can implement simple steps of diligence. These should include, but not be limited to the promotion of state sovereignty legislation, including the nullification of unlawful general government acts. And when we talk about legislation to push back, we need to go further than just saying that we won’t participate. We need to say, “when you send your federal agents here to try and overturn sovereign state law, our constitutional sheriffs are going to put them in jail – and you can come pay their fine to get ‘em out!”

At the end of the revolution, the states were 13 free and independent countries. They created a limited powers government to handle things they felt could be better done at a central location. But never in anything I can read was there a desire to be anything but free and independent states. We’re members of a voluntary compact – not slaves to a federal leviathan.

In our states today, both sovereignty and solvency are in peril. Sovereignty’s betrayal for solvency’s temporary relief is always on the table between D.C. and our state capitols. It’s you and me, and the rest of us that have to be the obstacle to that short sale of freedom. If we don’t do it, who will? If not today, when?

Using fair but firm insistence and pressure, we must remind our states of the 10th Amendment decision we require of them. For every unlawful general government imposition, a home country interposition – we are not going to be slaves to illegal legislation. It is up to us to remind our states of Madison’s warning that encroachments by the central government must “excite the legislatures to watchfulness and impose upon them the strongest obligation and that is to preserve unimpaired the line of partition.” That line is blurred, and hardly exists anymore.

So today, let’s make up our minds – no longer are we going to accept grassroots buzzwords from politicians in place of results. Starting today, let us be real clear to those politicians – we will no longer accept general government theft of our liberties. No longer will we stand by idly while our pockets are picked by political parties to fund the perpetual welfare-warfare state. No longer will we tolerate a vast nationalist state that has become aggressive abroad and despotic at home, and has decided that the limits of its own power is no limit at all.

Here today, we’re contemporary tenthers – we stand in the shadow of those original tenthers like Richard Henry Lee, George Mason, Elbridge Gerry, James Monroe and Thomas Jefferson – and we stand in good company. If they were here, would they ask us, “what have you done with your inheritance?” It’s up to us today to answer that by humbly accepting that responsibility to restore sovereignty, restore the founders’ federalism, and above all, to be free once again.

Andrew Nappi [send him email] is the State Chapter Coordinator for the Florida Tenth Amendment Center.

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

On Sunday, Oct. 3, the Lexington Herald-Leader ran an editorial outlining why requiring health insurance makes sense.

Following is a response written by Kentucky Tenth Amendment Center coordinator, Mike Maharrey. As of today, the Herald has not responded to the request to run this piece. We’ll let you know if that changes.

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In its Sunday, Oct. 3, editorial, the Lexington Herald Leader went to great lengths to explain why requiring every U.S. citizen to carry health insurance makes sense. But in answering one question, the Herald Leader failed to consider the first and most basic question: does the federal government have the constitutional authority to require every American to purchase health insurance?

It clearly does not.

The 10th Amendment states:

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.

Unless the Herald Leader editorial board can point to the specific powers granted to the general government in the Constitution, any health care solutions should rightly come through the states.

Proponents of nationalized health care mangle two Constitutional provisions to justify federal control of the health care system. Both arguments exhibit a misunderstanding of the framers’ intent.

Progressives argue that the power to regulate interstate commerce grants Congress sweeping authority to regulate virtually everything, including health care. This represents a gross misunderstanding of what the framers meant by interstate commerce and the reason that they included such power in the Constitution.

The framers granted Congress authority to regulate interstate commerce simply to prevent states from imposing tariffs on one another, thus inhibiting trade. It was never intended as a positive power allowing Congress to implement regulations on things like health care. James Madison, known as the father of the Constitution, made this clear.

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

In fact, the word commerce, as used by the framers, only referred to trade, not manufacturing or agriculture, much less services such as health care.

Progressives also use the taxing authority granted Congress in Article 1 Sec. 8 to argue that the federal government has the power to regulate health care.

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

The Constitution then proceeds to list 18 specific things to which federal taxing authority applies. Proponents of wide ranging federal power point to the words “general welfare”, arguing Congress has the power to levy taxes for any purpose that generally benefits the nation. But again, the writings of the framers do not support this view. Alexander Hamilton states in Federalist 83 that listing specific applications of  taxing power would be redundant if the authority implied unlimited powers.

“This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.”

Madison addressed the meaning of the words “general welfare”.

“With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

But progressives will argue that the courts have expanded these constitutional powers beyond their original meaning, and the federal government does indeed possess the power to mandate health insurance.

Thomas Jefferson made it clear in the Kentucky Resolutions of 1798 that the federal government itself was not the only party with the right to determine what is or isn’t constitutional. The states also possess that right.

“…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.”

And Madison argued that state governments have a duty to “interpose” for the people when the federal government oversteps its constitutional authority.

The founders understood the dangers of expansive centralized power. George Washington said, “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.”

They created a system designed to keep that power in check. They granted limited, enumerated powers to the federal government and left everything else to the states. The dangers of expansive power held in the hands of a few remains no less nefarious with the passage of time.

The Herald Leader argues that because requiring all citizens to carry health insurance is a good idea and would benefit the nation, federal power should make this happen. But good intentions do not justify ignoring the plain meaning of the Constitution. Pragmatism should never trump principles. And the Herald editorial board would be wise to remember that in 1798, the federal government thought it was a good idea, and beneficial to the nation, to arrest dissenting newspaper editors under the Sedition Act.

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.

As has been noted in the Texas Law Review, the Tenth Amendment is a rule of construction.  This simple text conveys a great deal of information, telling us how to interpret the entirety of the Constitution.

One important question, covered extensively by Dr. Thomas E. Woods, Jr. in his book, Nullification, is the question of who gets to decide what the Constitution means?  Conventional wisdom has it that the Supreme Court is the ultimate arbiter?  Our own author, Andy Quesnelle, has also addressed this question here.  This topic has also received extensive coverage elsewhere.

Many people who claim that the States also have the ability to interpret the Constitution for themselves argue from the perspective that it would be a conflict of interest for the federal government to have exclusive authority to exercise that power when it is also a contestant.  Others focus on the fact that the Constitution was created by the states, so it is logically necessary that the states’ powers are superior to those of their creation, the federal government.  In this essay, we will support those arguments with a third plank, what the Constitution actually says.  It is ironic that most commentators I’ve read have not applied the Tenth Amendment to this question.

Using the knowledge that the Tenth Amendment is a rule of construction, we can use it to create a “four square” table of allowed and prohibited powers to graphically show how the powers and levels of government were intended to fit together.  For each level of government, State and federal, there are exactly two possibilities: either that level of government is allowed to exercise a power or it is prohibited from exercising a power.  Conveniently, there are no other possibilities, so our table can be simple. Any power that can be imagined can be populated into our four cell table.

Table 1: Allowed and Prohibited Powers

*assuming 14^th amendment incorporation of the Bill of Rights

The red cell, containing powers which are allowed to the States, but prohibited to the federal government, is the domain of the Tenth Amendment.  This particular table is necessarily incomplete, but it will suffice for today’s purpose.  It could be extended to describe, in detail, all powers which are described by the Constitution.

The essential feature, for now, is that almost everything was intended to fall in the red, “U.S. Prohibited / State Allowed” quadrant of the table, “Everything else”.  As Madison wrote, in Federalist #45,

“The powers delegated by the proposed Constitution to the federal government, are few and defined[Row 1].  Those which are to remain in the State governments are numerous and indefinite[Row 2, Column 1].  The former [Row 1] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States [Row 2, Column 1] will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. “

Having a table like this may make it easier for some people to reason about the Constitution.  For example, a section of the Constitution which is often raised against the power of states to resist an unconstitutional law is the “supremacy clause”.  In Article 6 of the Constitution, this clause says,

“Main stream” thinkers often refer to this clause, claiming federal supremacy, to justify their opposition.

Let us examine that claim by using our table of allowed and prohibited powers to break down the first part of the supremacy clause and fit these objects into our table of powers.

1. This Constitution – includes all four quadrants of our table.
2. The Laws of the United States which shall be made in Pursuance thereof – Can only refer to the “U.S. Allowed” row of the table, since the Constitution itself fences off the “U.S. Prohibited” row.
3. “and all Treaties made, or which shall be made, under the Authority of the United States” – is even further focused in the “U.S. Allowed”, “State Prohibited” quadrant, where treaties are placed by the Constitution.

So the preeminent object of the supremacy clause must be, “This Constitution”, since it encompasses the more limited scopes of the following objects.  If an ostensible Treaty or a Law of the United States falls in the 2^nd row of the table, then “This Constitution” takes precedence and the treaty or law is invalid.  To some, this might seem obvious, but the persistent and wide spread misunderstanding on this point makes it clear that we need to examine it in great detail in order to be able to persuade others.

If a purported U.S. Law is a usurpation, infringing on a fundamental right or legislating on a topic which has not been delegated to the United States, then it falls in the second row of our table.  Therefore, the unconstitutional nature of the law overrides, and the supremacy clause says that the judges in every State must uphold the Constitution.

In short, when applying the Supremacy clause to legislation, it only applies to the balance of power between the federal government and a state if the power being exercised falls in the “U.S. Permitted & State Permitted” cell of the table.  In that case, and only in that case, the constitution says the federal law is supreme.

Now, we get to the main question of this essay, “Who decides whether a law contradicts the Constitution”?  The supremacy clause, the Tenth Amendment and our table of allowed and prohibited powers help us to answer this question.

First, with regards to the supremacy clause, note that the terminal portion of the supremacy clause does not limit its binding to federal judges.  It says, “the Judges in every State”.  Referring back to our table of powers, we see that the judicial power is a shared power.  The State and federal governments are both allowed to exercise judicial power under the Constitution.  The supremacy clause, therefore, tells us that state and federal judges are both bound by “this Constitution”, “the Laws of the United States which shall be made in pursuance thereof” and “all Treaties…”.

It should now be obvious that the supremacy clause allows, and in fact requires, both State and federal judges to evaluate whether laws are Constitutional.

Further, let us note that nowhere in the Constitution is the power to interpret the Constitution prohibited to the states.  Since the power to interpret the Constitution is not prohibited to the states, if we apply the Tenth Amendment, this power can only be in the “State Allowed” column of our table.  Either it is a shared power with the federal government or it is the sole province of the States.  An argument can be made that this power is included in the judicial powers, and thus shared by both levels of government, but it is clear that there is no Constitutional claim that the states may not exercise this power.

The “main stream” understanding in our times continues to be that only the federal government, in the form of the Supreme Court, is entitled to declare a law to be unconstitutional.  Many articles have been written describing the conflict of interest inherent in that viewpoint.  Others have been written detailing historical objections.  This article used logical arguments based on the Constitution itself to prove the fallacy of that idea.

There is nothing in the Constitution, including the supremacy clause, which prohibits States from interpreting the Constitution for themselves.  In fact, the supremacy clause requires the federal and state judiciary to do just that.

Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

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

EDITOR’S NOTE: Joe Wolverton, II will be joining us as a featured speaker at Nullify Now! Chattanooga.  Get tickets here – http://www.nullifynow.com/chattanooga/ – or by calling 888-71-TICKETS

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Of George Wythe, his former tutor and mentor, Thomas Jefferson once wrote: “No man ever left behind him a character more venerated than George Wythe. His virtue was of the purest tint; his integrity inflexible, and his justice exact; of warm patriotism, and devoted as he was to liberty and the natural and equal rights of man, he might truly be called the Cato of his country.”

It is not surprising then, given Jefferson’s admiration and estimation of Wythe’s character and insight, that it is to him that on September 16, 1787 Jefferson penned the following expression of his notion of the principles of good government. That letter, written on the very day before the delegates to the convention in Philadelphia would endorse the Constitution of the United States, read in relevant part:

You ask me in your letter, what ameliorations I think necessary in our Federal Constitution. It is now too late to answer the questions, and it would always have been presumptuous in me to have done it. Your own ideas and those of the great characters who were to be concerned with you in these discussion will give the law, as they ought to do, to us. My own general idea was that the States should severally preserve their sovereignty in whatever concerns themselves alone, and that whatever may concern another State or any foreign nation should be made a part of the Federal sovereignty; that the exercise of the Federal sovereignty should be divided among three several bodies, Legislative, Executive, and Judiciary, as the State Sovereignties are; and that some peaceable means should be contrived for the Federal head to force compliance on the part of the States….”

As he alludes in his letter to Wythe, Jefferson was not present at the Constitutional Convention. He was in Paris, but remarkably the principles of sound government explicated by Jefferson in this missive were nearly identical to the precise arrangement established by the Convention and embodied in the Constitution produced by their thoughtful and impassioned deliberations.

Jefferson’s first priority, as stated above, is the protection of state sovereignty. After years of federal overreaching and collusion among the three branches of government to expand the bailiwick of the national government, the states are beginning to reassert their natural right of self-determination and their “Lockean outburst” is ringing in the ears of Establishment politicians in both parties, on both coasts, and in every state in between. If Leviathan is to be cowered and restrained by the fetters of Constitutional limited government, then it will surely be the states and the citizens thereof that will deserve the credit.

Part of Jefferson’s defense of the sovereignty of the several states concerns the right implicit in that status to legislate in matters that “concern themselves alone.” There is probably no principle of Constitutional law more debated in the daily newspapers of our day than this one. Arizona, Pennsylvania, Oklahoma, Utah, and other states have expressed their control over their own borders by enacting laws proscribing the presence of illegal aliens within their boundaries. With various methods, these sovereign states have boldly defended the rights and safety of those legally present in their territory and upon whom they depend for their legitimacy. Many opposed to the enactment of these statutes argue that immigration and the control thereof is a matter within the exclusive jurisdiction of the federal authority. This attitude ignores a hundred years of American jurisprudence and Constitutional interpretation, as well as the clearly expressed intent of the Founders (see, for example, this article published recently in The New American).

James Madison, Father of the Constitution and longtime friend of Thomas Jefferson, summed up the Founders’ position simply and succinctly: “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.” Statists disregard such clear statements, preferring instead to wrest from the imagined penumbras and emanations of the Constitution the scaffolding upon which they will construct their temple to the goddess of Progress.

The division of power among three departments was well-established years before Jefferson espoused such in his wish list to George Wythe. In his influential book L’Esprit des Lois (The Spirit of the Laws) Charles de Secondat, Baron de Montesquieu, described this critical separation of the various powers of government as essential to liberty.

In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.

By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state.

The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

In the spirit of giving credit where credit is due, however, one must admit that Montesquieu only paraphrased a doctrine of good government praised by philosophers centuries before he was a household name on two continents. Polybius, for example, in his history of the laws of Rome, ascribed the strength and longevity of the Roman constitution to its enshrinement of a mixed government, that is a single state with elements of all three forms of government at once: monarchy (consuls), aristocracy (Senate), and democracy (popular assemblies). This unique mixture and division of power requires each of the three branches of government to at once check the strength of and balance the weakness of, the other two. (See Book VI of Polybius’s Histories).

Finally, Jefferson recommends the endowment of the federal government with the power to “force compliance on the states….” This statement is in no way inconsistent with Jefferson’s jealous defense of the right of states to rule themselves. Jefferson and his generation were acquainted with the dangers and delay that accompany an impotent central authority. The United States were too much of the latter and too little of the former under the Articles of Confederation. Local concerns and regional disputes were spinning the states into centrifugal chaos and were exposing them to the whims of the government of His Majesty that they had so recently shuffled off.

To the end of remedying this weakness through the formation of “a more perfect union,” the Convention of 1787 was held in Philadelphia from May to September of 1787. While the compromise hammered out by the delegates of the twelve states present at the convention is not perfect, it is certainly an improvement on the government created by the Articles of Confederation and it is inarguably the finest expression of the timeless principles of sound and limited government ever produced by the mind of mortals in the history of mankind. The novelty of the experiment in harmony with the peculiar genius of the American people, a people inculcated from the cradle with zeal for liberty, combined in that document to produce a penetrating peal of freedom that is ringing still.

Apart from his work as a journalist, Joe Wolverton, II is a professor of American Government at Chattanooga State and was a practicing attorney until 2009. He lives in Chattanooga, Tennessee with his wife, Sarah.  Since 2000, Joe has been a featured contributor to The New American magazine. Most recently, he has written a cover story article on the Tea Party movement, as well as a five-part series on the unconstitutionality of Obamacare.

This article originally appeared in The New American magazine – and is republished here with permission of the author.

Rights and privileges are misunderstood by legislators and citizens alike. The application of law from various jurisdictions using conflicting interpretations only confuses citizens and sets the stage for the erosion of rights in spite of intent. The very purpose of civil government is for the protection of our individual rights. Municipal and state laws should constrained to that purpose as much as possible as well. Going beyond that mandate can immediately bring our rights as citizens under attack.

The relationship of state government to the national government in our federal system must not be mistaken. To allow the national government the right to tell state citizens what they can or cannot do violates the contract between the states that is the foundation of our country. The purpose of national intervention into the affairs of citizens is only allowed in the case that state law becomes abusive of the rights of citizens. As long as the state is not abusive of rights, it is in compliance with the federal contract and national interference is not needed. Ultimately, that was the reason for the 14th Amendment.

The 1875 Civil Rights Act was declared unconstitutional by the Supreme Court in 1883 because of the over reaching application of national power, ostensibly through the 14th Amendment. Here is an excerpt from that ruling referring to individual rights as positive rights:

“Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect: and such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect …”

In other words, if the state has not passed law abusive of individual rights, the federal government does not have standing to interfere in the affairs of its citizens. To do so would violate the respected order of jurisdictional limits.

It is unfortunate that, after the Civil War, many states did not adequately protect the rights of former slaves. In fact, many abuses of national power can be traced to an inadequate response by the states to maintain the sanctity of individual rights. However, national government encroachment into these areas results in law that coerces rather than protects. The results may help some citizens, but it is almost always at the loss of rights of others.

The current health care law is a prime example of national law that oversteps state jurisdiction and results in the loss of rights of state citizens. By mandating an imaginary “right” to health care, the labor of healthcare providers and the property of taxpayers are unfairly infringed. If, indeed, such a right did exist, the state should respond by protecting that right. But it is hard to protect a right that doesn’t exist, and national encroachment just makes things worse.

These types of actions by the United States Congress infringe on the rights of citizens to be secure and free in their own lives. It also infringes on the responsibility of municipalities and states to protect those rights.

If Congress oversteps its constitutional bounds in this manner, it is the right and responsibility of the states to overrule Congress and protect the Life, Liberty and Property of state citizens. If the state doesn’t do its job on behalf of its citizens, then we may find we have come to Liberty’s end.

Lex Green [send him email] is the state chapter coordinator of the Illinois Tenth Amendment Center

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

Great things are happening across America. The actions of a few brave and noble state legislators and state officers around the Republic may well demonstrate that the most important election in the nation may not be the run for the President of The United States. The most important upcoming elections for all Americans may be those for their state House of Representatives, State Senate, Attorney General and their Governor’s races. When this country was created the office of the President was intended to have a relatively minor influence on the citizens of each state. It appears that some legislators and state Attorney Generals are dusting off the Constitution and working to get their house in order.

In Oklahoma the state legislature has a Bill pending to re-assert their state sovereignty.  The short caption of the bill reads:

“Joint Resolution claiming sovereignty under the Tenth Amendment to the Constitution of the United States over certain powers; serving notice to the federal government to cease and desist certain mandates; and directing distribution.”

Essentially, Oklahoma has asserted that the federal government and those in Washington D.C. are no longer going to dictate the way they run their state education, industries, National Guard, state police and they are especially not going to run rough shod over their state legislature. Oklahoma has told Washington, enough is enough. GET OUT!

In Montana the Governor and the State Legislature are reasserting their sovereignty and telling the Director of Homeland Security they have no constitutional authority to force the National ID on its citizens.

In New Hampshire a group of legislators are diligently working to introduce sound money backed by gold and silver as a state currency.

In Nevada the State Legislature rules the Federal Reserve Corporation unconstitutional.

It is All About Sovereignty

When we look at the source of the problem, most every problem in America today stems from a failure to respect and understand sovereignty: national, state, local and individual. The national police state and (FBI, DEA, CIA, OSHA, Corp of Engineers, Homeland Security, IRS, Fish and Wildlife, EPA, Fusion Centers, etc., etc.) runs rough shod over the state police, local sheriff’s offices and citizens in each state. The dire problems in this country were created by unconstitutional, unconscionable actions of the U. S. Congress. These agencies undermine the liberties of all Americans, violate the 10th Amendment to the U.S. Constitution and undermine the sovereignty of each state. Take a look at a list of all Federal Agencies. You will not believe it (http://www.usa.gov/Agencies/Federal/All_Agencies/index.shtml ).

The financial problems created by having to feed this machine seem so complex and overwhelming that most Americans have developed a sense of hopelessness and despair. When it comes to dealing with issues such as the national debt, the growing federal bureaucracy and the national police state, the citizens and states have no viable avenue for redress. When citizens have more fear of the IRS and the federal government than of dying, we have a problem.

When it comes to protecting one citizen from another, the sheriff of each county is the legitimate constitutional protector of the rights and liberties of the citizens. Their offices are charged with both protecting the liberty of the citizens and prosecuting those who commit criminal acts against another citizen. Should the sheriffs’ office ever engage in violating the rights of its citizenry, the citizens have immediate recourse by calling a town meeting or replacing the sheriff at the next election. The sheriff is immediately answerable to those who entrust him with such power. This is the proper order of things.

With a Federal Police state or federal regulatory bureaucracy, there is no redress for the citizens of the state. Can one vote out the director of the US Army Corps of Engineers or the head of the Internal Revenue Service in Washington D.C.? Write your Congressman and see what kind of results you get. Additionally, the U.S. Congress and its agencies treat our states and city municipalities as low level extensions of Congress. They have forgotten that, THE STATES CREATED THE CONGRESS and gave them their limited powers. The national police and federal regulatory agencies routinely undermine the citizen’s inalienable right of self defense by placing limitations on gun ownership. The federal government has undermined the citizen’s right of freedom and life through the personal income tax and regulation of every area of one’s life or business. The average state citizen now works nearly 4 months of the year for the federal government. The sad irony is, we created the federal government to protect our liberty and privacy and now it is the federal government we need protection from. This is not how the Founders intended.

Debt, Taxes and Inflation

In order to pay for the federal behemoth, the U.S. Congress and Federal Reserve Corporation have saddled the American people with an unrecoverable $13 trillion of debt. Half of this debt was accumulated in the past 8 years. This is now expected to be repaid by our children and grandchildren. No generation has the right to pass on a debt to the next generation.

Unfortunately, the U.S. treasury is empty, we are taxed until we cannot be taxed anymore and the federal government has borrowed until it cannot borrow anymore. According to the former Controller General of the United States David Walker, the U.S. has another $50 trillion in social service, Medicare and Medicaid obligations coming due over the next 30 years. http://www.federalbud….

Walker says, the U.S. Government is already insolvent and operates only off of borrowed money. The income taxes collected are primarily paying the $1.5 billion a day interest payment. Assuredly, he states, at our present course the U.S. Government will cease to operate.

Privacy

Did you know that the federal government has passed legislation requiring every citizen to obtain a National Id Card? The little known legislation is known as the Real ID Act was passed into law by Congress in 2003 and began being implemented in May of 2008 (http://www.realidstates.com/category/real-id-act/ ). Florida, my home state, implemented the program in January 2010. The national ID Card is a centralized federal government file database on every American. This legislation allows the director of the Department of Homeland Security to track all of your financial transactions (i.e. political affiliations, social clubs, service clubs, gun ownership, types of guns purchased, places traveled) health records, biometric data, blood type, DNA information and social security number and will have the ability to be directly connected to your ATM or Debit Card.

People often say that if you have nothing to hide why should you care?

First of all, it smacks of a modern version of the required papers required by the Gestapo in Nazi Germany and secondly the government was created to protect our privacy not invade it. Read a little on the Nazi police state for a brief history lesson. Also, I am uncomfortable knowing that my small children, for their entire life may have every doctor visit, everywhere they travel and everything they ever purchase collected, maintained and analyzed by the government official in a federal government database.

So with all of this, what can possibly be the good news?

The Solution

The good news is that our founding fathers anticipated all of this and they gave us the ability at any time to bring the house in order. When this Republic was founded, we referred to one another as Floridians, Alabamans, Georgians, and Virginians.

When referring to the states collectively it was states the “United States are” …

Today the federal government would have us to believe the “United States is” one large collectivist national state, run and operated out of Washington D. C.

This issue probably would not be resurrecting itself if it were not for Washington seeking to strip our liberties and God given rights from us, enslave us through taxation, burden our children with debts, and collapse the dollar we trade in until our entire nations wealth disappears through inflation. As a result, few leaders in Washington can be trusted. Our founding fathers repeatedly warned us to not trust those in power. We must follow Oklahoma’s lead, dust off the Constitution, re- assert our state sovereignty and turn to ourselves to preserve our liberties and our prosperity.

Our solution will be a long arduous battle that begins at the local level, then state level, one legislator at a time. Eventually we will have a legislature and governor willing to stand up to the federal leviathan. During the process they will be under tremendous pressure to abandon the course. Their careers will be threatened, if they own businesses they will be threatened with loss of business or contracts, they will be ridiculed by the media as anachronistic and the weight of their party will bear on each of them. There are trillions of dollars being spent at the federal trough and the pigs will not leave until they are starved out. This plan will take governors calling governors and legislators calling legislators. We must follow the Founders advice and the states must re-assert their sovereignty. The states must refuse to allow the US Government to continue to run roughshod over their legislatures. We must do as Oklahoma has done, tell them enough is enough.

We need to find, educate and elect officials who think deeply about the principles this county was founded upon. Leaders that understand that taking office is a burden not a popularity contest. We need leaders that do not allow themselves to become compromised. We need leaders with the courage of their convictions to tell those in Washington D.C. that our state is not going to take it anymore. As Oklahoma has said, enough is enough. We are here to take it back!