A recent Rasmussen poll indicates a growing number of Americans agree with James Madison and support state refusal to cooperate with the federal government.

The first key finding was that a majority of likely voters in the U.S. believe states should have the right to opt out of federal programs.

The poll indicates that 54 percent believe states should ignore federal programs they don’t agree with. The number jumps if the program includes unfunded mandates. A full 61 percent of likely voters think states should have the right to opt out of federally mandated programs if the feds don’t help pay for them.

A third of Americans take an even more aggressive position, supporting the right of a state to ignore Supreme Court decisions. The recent SCOTUS opinions on gay marriage and Obamacare seem to have ignited a surge of support for this position, according to Rasmussen.

“[The] survey finds that 33 percent of Likely U.S. Voters now believe that states should have the right to ignore federal court rulings if their elected officials disagree with them. That’s up nine points from 24 percent when we first asked this question in February.  Just over half (52 percent) disagree, down from 58 percent in the earlier survey.”

I find it interesting that so many Americans express a willingness to ignore Congress by opting out of federal programs, yet many in that same group still can’t bring themselves to ignore a Supreme Court opinion. They are, after all, “coequal” branches. The fact that most Americans view the Supreme Court as the final authority on constitutionality probably accounts for this disparity.

We can debate the absolute supremacy of the Supreme Court in establishing constitutionality. But when it comes to states simply opting out of federal programs, or even refusing to cooperate with enforcement of federal laws, according to James Madison, constitutionality doesn’t matter. Even if the Supreme Court deems a federal act or program constitutional, states can still simply opt out by refusing to act. In other words, even though the Court has found Obamacare “constitutional,” states can still opt out and refuse to implement or participate in its operation.

Madison established this principle before the Constitution was even ratified. Writing in Federalist #46, the “Father of the Constitution” addressed an important question: how do Americans keep a limited federal government from acting outside of its delegate powers?

Madison wrote that the states hold the key to checking federal power through a “refusal to cooperate with officers of the Union.” Additionally, he wrote:

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand.” [Emphasis added]

Take careful note of the words Madison uses. He doesn’t just limit state action to “unwarrantable measures,” meaning acts that violate the Constitution. Madison says states can take action to oppose even “warrantable measures.” In other words, acts of the federal government perfectly within its delegated power and authority. States have just as much right to opt out of legitimate programs as illegitimate programs.

States don’t have to act. They can opt out.

In fact, as Madison brilliantly argues in Federalist #46, the system was set up that way. The founding generation never intended to establish a monopoly government centered along the banks of the Potomac. Without the ability of states to act against unconstitutional, or even constitutional, yet unpopular acts, the federal government becomes an entity with unlimited power.

When states opt out or refuse to participate, they create effective impediments and obstructions to federal powers

The recent Rasmussen poll indicates Americans are starting to come around to Madison’s point of view.

Mike Maharrey

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