Keep the Feds in Check with Nullification; Not Amendments | Eastern North Carolina Now

    Jefferson wrote to Charles Hammond in 1821: "The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated."

    And Abraham Lincoln, in criticizing the Dred Scott decision, said: "If the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal."

    I have read what our Founders wrote about Nullification. I believe it to be as legitimate a doctrine as any other check and balance doctrine on which our government was based. I believe it to be as foundational a principle as limited government and "government of the People." I will never place the opinions of any federal court judge over the very words of those who defined our American notion of ordered liberty and our system of government. I know what the intentions were of our Founders - to honor the spirit of our American Revolution and to secure individual liberty. I always question the intentions and judgment of federal court judges.

    Justice Felix Frankurter, who served on the Supreme Court from 1939-1962, once said this about the high Court's decisions: "The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." And we should take his advice and disregard the Court's opinion in Cooper - and in Ableman too!

    Attorney General Edwin Meese, III (Attorney General under President Ronald Reagan), a constitutional scholar, was highly critical of the Cooper v. Aaron decision, and in fact delivered these words to Tulane University Law in 1986:

    "A decision by the Supreme Court does not establish a 'supreme Law of the Land' that is binding on all persons and parts of government, henceforth and forevermore. Obviously it does have binding quality: It binds the parties in a case and also the executive branch for whatever enforcement is necessary. But there is a necessary distinction between the Constitution and constitutional law. The two are not synonymous. The Constitution is a document of our most fundamental law. It begins 'We the People of the United States, in Order to form a more perfect Union...' and ends up, some 6,000 words later, with the 26th Amendment. It creates the institutions of our government, it enumerates the powers those institutions may wield, and it cordons off certain areas into which government may not enter. It prohibits the national authority, for example, from passing ex post facto laws while it prohibits the states from violating the obligations of contracts. The Constitution is, in brief, the instrument by which the consent of the governed - the fundamental requirement of any legitimate government - is transformed into a government complete with 'the powers to act and a structure designed to make it act wisely or responsibly.' Among its various 'internal contrivances' (as James Madison called them) we find federalism, separation of powers, bicameralism, representation, an extended commercial republic, an energetic executive, and an independent judiciary. Together, these devices form the machinery

    of our popular form of government and secure the rights of the people. The Constitution, then, is the Constitution, and as such it is, in its own words, 'the supreme Law of the Land.'

    Constitutional law, on the other hand, is that body of law which has resulted from the Supreme Court's adjudications involving disputes over constitutional provisions or doctrines. To put it a bit more simply, constitutional law is what the Supreme Court says about the Constitution in its decisions resolving the cases and controversies that come before it.

    The Supreme Court is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution - the executive and legislative no less than the judicial - has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes an oath precisely to that effect. For the same reason that the Constitution cannot be reduced to constitutional law, the Constitution cannot simply be reduced to what Congress or the President say it is either. Quite the contrary. The Constitution, the original document of 1787 plus its amendments, is and must be understood to be the standard against which all laws, policies and interpretations must be measured.

    But in their task of interpreting the Constitution, the courts have on occasion been tempted to think that the law of their decisions is on a par with the Constitution. That is, they have reduced the Constitution to constitutional law.

    Some thirty years ago, in the midst of great racial turmoil, our highest Court succumbed to this very temptation. By a flawed reading of our Constitution and Marbury v. Madison, and an even more faulty syllogism of legal reasoning, the Court in a 1958 case called Cooper v. Aaron appeared to arrive at conclusions about its own power that would have shocked men like John Marshall and Joseph Story. In this case the Court proclaimed that the constitutional decision it had reached that day was nothing less than 'the supreme law of the land.' Obviously the decision was binding on the parties in the case; but the implication that everyone would have to accept its judgments uncritically, that it was a decision from which there could be no appeal, was astonishing; the language recalled what Stephen Douglas said about Dred Scott. In one fell swoop, the Court seemed to reduce the Constitution to the status of ordinary constitutional law, and to equate the judge with the lawgiver. Such logic assumes, as Charles Evans Hughes once quipped, that the Constitution is 'what the judges say it is.' The logic of Cooper v. Aaron was, and is, at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law.

    Just as Dred Scott had its partisans a century ago, so does Cooper v. Aaron today. For example, a U.S. Senator criticized a recent nominee of the President's to the bench for his sponsorship while a state legislator of a bill that responded to a Supreme Court decision with which he disagreed. The decision was Stone v. Graham, a 1980 case in which the Court held unconstitutional a Kentucky statute that required the posting of the Ten Commandments in the schools of that state. The bill co-sponsored by the judicial nominee - which, by the way, passed his state's Senate by a vote of 39 to 9 - would have permitted the posting of the Ten Commandments in the schools of his state. In this, the nominee was acting on the principle Lincoln well understood - that legislators have an independent duty to consider the constitutionality of proposed legislation. Nonetheless, the nominee was faulted for not appreciating that under Cooper v. Aaron, Supreme Court decisions are the law of the land - just like the Constitution. He was faulted, in other words, for failing to agree with an idea that would put the Court's constitutional interpretations in the unique position of meaning the same as the Constitution itself.

    My message today is that such interpretations are not and must not be placed in such a position. To understand the distinction between the Constitution and constitutional law is to grasp, as John Marshall observed in Marbury, 'that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.' This was the reason, in Marshall's view, that a 'written Constitution is one of the greatest improvements on political institutions.'

    Likewise, James Madison, expressing his mature view of the subject, wrote that as the three branches of government are coordinate and equally bound to support the Constitution, 'each must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.' And, as his lifelong friend and collaborator, Jefferson, once said, the written Constitution is 'our peculiar security.'

    Once again, we must understand that the Constitution is, and must be understood to be, superior to ordinary constitutional law. This distinction must be respected. To do otherwise, as Lincoln once said, 'is to submit to government by judiciary.'"

    It is amazing to me how far we as a nation, as a collective people, have strayed from the principles of individual liberty. Too many people believe they must check with the federal government to see what their rights are and what their Constitution means. Sadly, Mark Levin is one of those Americans.

    Here is my biggest problem with Mr. Levin's promotion of his "Liberty Amendments" - aside from his outright rejection of Nullification: The government has consistently and unabashedly overstepped its authority in the Constitution when it has suited its purposes. In fact, there has rarely been a time when it confined itself to the articles which were delegated to it by the People and the States. Yet Mr. Levin is adamant that the People, in order to try and regain the rights they are entitled to and the proper (and limited) scope of government in their lives, MUST abide strictly by what the Constitution allows them to do. Again, never mind that the People nor the States ever assented to the changes that the federal government assumed for itself under the Constitution that SHOULD HAVE BEEN made legally through the Article V amendment process..... Mr. Levin still is steadfast that the People need to go through the arduous amendment process in order to get the government to do what it is/ was constitutionally REQUIRED to do.

    Being the Deputy Director of the North Carolina Tenth Amendment Center, I naturally am disappointed that Levin has publicly rejected Nullification. Mr. Levin says that Nullification is not a viable option in limiting the size and scope of the federal government. When considering how to restore the government to its constitutional limits, he takes the position that Nullification should never be a remedy that is on the table. In other words, he believes that the People should be carefully, strictly, and narrowly limited in their ability to define and constrain their government. He believes that the only options available should be those both expressly provided in the Constitution and NOT foreclosed by any decision, determination, or proclamation by the government itself.

    Michael Maharrey, with the Tenth Amendment Center, defines Nullification as, "those of us with the authority to say no to the federal government executing that authority." As every supporter of Nullification knows, the individual states pre-existed the federal government. While there were some founders (Nationalists) who wanted a national government with a general veto power over any and all legislative acts of the states which it disagreed with, this position was flatly rejected by the majority of delegates (Federalists) to the Constitutional Convention who thought it was the States that needed to be the parties with the veto power over the federal government. These Founders included James Madison and Thomas Jefferson (who may not have been at the Convention but was in constant contact with Madison regarding the task at hand). As Maharrey explains: "The states created the federal government and enumerated power to it." In his writings and when he presents, he is quick to cite Madison's famous Federalist No. 45 to emphasize the limits of such power enumerated by the states to the federal government, particularly in Article I, Section 8:

    "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. The former 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 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.

    The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States."

    Maharrey explained that outside of those few and defined powers, everything else, all other power, is reserved and resides in the sovereignty of the individual people and in the states, in accordance to the Ninth and Tenth Amendments to the Constitution. Nullification, in short, stands for the proposition that the federal government CANNOT be permitted to hold a monopoly over the interpretation of the Constitution and the definition of its powers and scope of government. Government is a "creation" of the People and not its ruler.

    If our Founding Fathers and founding revolutionaries had taken Mark Levin's approach towards government, the colonies would never have had any legal ground to sever ties with Great Britain and the Articles of Confederation would still be the legally operable constitution that unites our states (since the people themselves were never apprised of the real purpose of the Convention - to scrap the government created by the Articles of Confederation, to start from scratch, and to draft a new Constitution and create a new government - and hence the delegates were without proper authority to do what they did).

    Thomas Jefferson wrote: "That if those who administer the general government be permitted to transgress the limits fixed by the federal compact (ie, the US Constitution), but a total disregard to the special delegations of powers therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction, contended by the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism - since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers. That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the RIGHTFUL REMEDY." [Kentucky Resolutions of 1799]

    James Madison, in his Notes on Nullification (1834), explained: "...when powers are assumed which have not been delegated, a nullification of the act" is "the natural right, which all admit to be a remedy against insupportable oppression..."

    In the Virginia Resolutions of 1798, Madison wrote: "That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states (alone) are the parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants (of power) enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact, the states who are parties thereto have the right, and are duty-bound, to INTERPOSE for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them..."

    At North Carolina's ratifying convention, James Iredell told the delegates that when 'Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.' In December 1787, Roger Sherman of Connecticut observed that an 'excellency of the constitution' was that 'when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.'"

    I'll take James Madison and Thomas Jefferson and even James Iredell, the men who defined our liberty, as authorities on what is constitutional or not over Mr. Levin.

    Constitutional attorney, Publius Huldah, recently wrote: "Resistance to tyranny is a natural right - and it is a duty." I'll support Ms. Huldah's position anyday over those attorneys who oppose Nullification. Ms. Huldah sides with the People and their Natural Rights. Those other attorneys side with a centralized, all-powerful and all-knowing government - the very thing we fought a Revolution to rid ourselves of.

    In the United States, natural rights are protected by government and not violated by it. At least that was the American ideal.

    Nullification is the Rightful Remedy when you understand the simple truth - that anytime the federal government oversteps its constitutional bounds, it is taking away OUR liberty and our right to govern ourselves. The federal government is not just stepping on the States' rights, but it is a usurpation of INDIVIDUAL liberty. Nullification is our immediate remedy to re-assert and reclaim those rights. Read the Declaration of Independence again. All government power comes from the individual. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...." Constitutions are written to define what powers the people have consented to give government. Constitutions are a permanent and fixed manifestation of the will of the people as to what inherent powers of self-government they agree to delegate to a common government for their behalf. They are to be strictly construed and always read in a light most favorable to the individual since it is the individual from whom the power arises and the individual who has the most to lose. Constitutions are not to be re-interpreted, misconstrued, re-labeled, or diminished in any way, shape, or form. They are not supposed to be "worked upon by the temper of the times." All power not expressly delegated resides in the People. Any attempt by a government to assume more powers than it was delegated naturally is a usurpation of the inherent rights and liberties of the People.

    Again, as Thomas Paine wrote in his Rights of Man (1791): "A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation." For anyone who wishes to dismiss Thomas Paine in any discussion of our founding government principles, consider this. It was Thomas Paine that George Washington had his men read as they pressed on in tattered clothes and bloodied bare feet and without pay to fight the Revolutionary War. Washington wanted his men to understand full well what they were fighting for in America's quest for independence and the right to govern as they saw fit in order to secure their God-given rights. No man would rightfully sacrifice his life to substitute one tyrant government for another.

    When any government continues to usurp the powers of the People, or believes its powers to be more important than the rights of the People to limit their government, or to continue to redefine its powers, it becomes tyrannical. Our Constitution explicitly empowered every American with the right to limit their government. "

    That whenever any Form of Government becomes destructive of these ends, it is the right of the People to alter or to abolish it, and to institute new Government..." The federal government has no right or power to interfere with the right of the People to do so. Similarly, it has no right to take away the remedy of Nullifcation.

    Thomas Woods, author of the best-selling book Nullification: How to Resist Federal Tyranny in the 21st Century asks: "How can the Supreme Court, part of an agent of the states, have the absolutely final say, even above the sovereign entities that created it?" As Madison explained in his Report of 1800, the courts have their role, but the parties to the Constitution naturally have to have some kind of defense mechanism in the last resort.

    The Tenth Amendment was added, along with the rest of the Bill of Rights, as an express "further limitation" on the federal government. In other words, the federal government would be limited by the recognition and assertion of States' Rights and States' powers. The preamble to the Bill of Rights states clearly that "a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added..." In other words, the parties that created and signed the Constitution (which then created the federal government) insisted that the Ninth and Tenth Amendments be added in order to more emphatically limit the federal government (all branches) through an emphasis on States' rights and People's rights. As such, the Supreme Court has no power to limit the power of the States in its ability to hold the federal government in check. The Bill of Rights is supposed to limit the government; the courts can't limit the Bill of Rights. After all, the Bill of Rights is also a limit on the federal courts !!

    In conclusion, one only has to look at the enormity of the constitutional crisis we currently face and then look at the likely chance that Mr. Levin's Article V Convention will offer any real relief. It is very unlikely that our constitutional republic can be properly restored under that scenario - at least not in the near future. The American people are growing too restless and frustrated to wait. In his article about a Nullification event in Wisconsin, Christian Gomez wrote: "As Washington continues to show no signs of retreating from its expansionist federal polices, encroachment in the lives of individuals, interference in healthcare, the free market, and violating the Constitution, the battle is not lost. Nor is it far from over, but it could be: 'All it takes for evil to succeed is for a few good men to do nothing,' Edmund Burke once said. In the case of the Restoring the Republic gathering in Pewaukee, Wisconsin, it is clear that more than just a few good men and women have no intention of doing nothing. So long as the people can be educated about Nullification, then hope is not fleeting."

    References:

    Thomas Woods, "Is Nullification Unconstitutional?," February 5, 2013. Referenced at: http://www.tomwoods.com/blog/is-nullification-unconstitutional/

    Christian Gomez, "'Restoring the Republic' Event in Wisconsin Addresses Nullification," The New American, September 25, 2013. Referenced at: http://www.thenewamerican.com/usnews/constitution/item/16619-restoring-the-republic-event-in-wisconsin-addresses-nullification

    Publius Huldah, "Mark Levin Refuted: Keep the Feds in Check with Nullification," Freedom Outpost, September 14, 2013. Referenced at: http://freedomoutpost.com/2013/09/mark-levin-refuted-keep-feds-check-nullification-amendments/

    Cooper v. Aaron, 358 U.S. 1 (1958)

    Ableman v. Booth, 62 U.S. 506 (1859)

    Marbury v. Madison, 5 U.S. 137 (1803),

    Edwin Meese III, "The Law of the Constitution." A Speech delivered to Tulane University on October 21, 1986. Referenced at: http://www.justice.gov/ag/aghistory/meese/1986/10-21-1986.pdf

    Federalist No 45. http://avalon.law.yale.edu/18th_century/fed45.asp

    James Madison, Report of 1800. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=875&chapter=63986&layout=html&Itemid=27

    APPENDIX:

    Ableman v. Booth (1859) -

    The Court noted: "It appears that the State court has not only claimed and exercised this jurisdiction, but has also determined that its decision is final and conclusive upon all the courts of the United States, and ordered their clerk to disregard and refuse obedience to the writ of error issued by this court, pursuant to the act of Congress of 1789, to bring here for examination and revision the judgment of the State court."

    It went on to explain why the federal government and the Supreme Court must be supreme in their particular spheres of authority:

    The Constitution was not formed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home, for if this object could be attained, there would be but little danger from abroad, and, to accomplish this purpose, it was felt by the statesmen who framed the Constitution and by the people who adopted it that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the General Government, and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities. And it was evident that anything short of this would be inadequate to the main objects for which the Government was established, and that local interests, local passions or prejudices, incited and fostered by individuals for sinister purposes, would lead to acts of aggression and injustice by one State upon the rights of another, which would ultimately terminate in violence and force unless there was a common arbiter between them, armed with power enough to protect and guard the rights of all by appropriate laws to be carried into execution peacefully by its judicial tribunals.

    The language of the Constitution by which this power is granted is too plain to admit of doubt or to need comment. It declares that:

    'This Constitution, and the laws of the United States which shall be passed 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, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.'