What is the Significance of Our Constitution, and Can Nullification Save It? | Eastern North Carolina Now

    Obamacare has the potential to transform this country into one that dangerously curbs our fundamental freedoms, socializes wealth, status, and risk, and puts us at the mercy and the discretion of a government that is more interested in social engineering than the individual rights so profoundly advanced by our founding documents and so proudly defended by patriotic heroic Americans. It also has led to something perhaps President Obama never intended and that is a renewed interest in the US Constitution and a rekindled appreciation for our Founders and the values and principles upon which they established our nation. Suddenly, the Constitution, the Federalist Papers, and books on our Founding Fathers have topped the reading lists for ordinary Americans. An article in The Hill (May 2010) announced that the Constitution was the best-seller of the year. Former Attorney General Ed Meese, and current head of the Heritage Foundation's Constitution Center, said: "I think there is more interest now than I've seen in the last many years, and I think it's because people are really worried about whether the federal government is getting so large, so expansive, so intrusive and so powerful that the Constitution is in jeopardy."

    Thanks to the policies and conduct of President Obama, many people are finally learning what real American values are. In the end, his legacy may very well be that he inspired Americans to take a stand for their constitutional liberties.

    Yet, I am amazed that certain people still don't appreciate the immeasurable value of that simple document that spans about six printed pages. Or maybe they don't want to take the time to educate themselves on the meaning of life, liberty, and pursuit of happiness. Maybe life in the United States for many people isn't about freedom and opportunity anymore but rather about control, boundaries, and things. Maybe "bread and circuses" satisfy the soul more deeply than the exercise of one's freedom. If that is true, how sad a statement it makes about the evolution of mankind. What a sad statement it makes about a people who are overwhelmingly blessed with freedom and protection and who have been the lucky benefactors of the actions of generations of brave and honorable men and women who fought and sacrificed for those ideals but too weak and apathetic to pay it back or pay it forward.

    What is a constitution? The whole purpose of any constitution, and especially the Constitution of the United States, is to remove as best as possible and as much as possible the interpretation and application of the law from political controversy. With a constitution, the purpose is to set up basic principles that are going to apply and which the legislature and the courts are supposed to faithfully abide by. In bullet points, our Constitution can be summed up as follows:

    • It is a social compact (ie, a contract, listing the responsibilities and obligations that bind parties)
    • Like the Magna Carta, the Right of Petition of 1628, the Habeas Corpus Act of 1679, the English Bill of Rights of 1689, the constitutions of the individual Colonies, and the Declaration of Independence, the US Constitution defines the relationship between the People and their government. It sets limits on government power and authority with respect to essential freedoms, especially those of life, liberty, property, and the pursuit of happiness (the right to enjoy the fruits of one's freedoms)
    • It sets forth the enumerated, limited responsibilities of each branch of government, leaving the residual bulk of power to the States (10th amendments). All government action beyond the expressly enumerated powers is unconstitutional. It exceeds the grant of power that was agreed to under the compact.
    • The first ten amendments (the Bill of Rights) list those rights which are so fundamental to the concept of individual liberty that the government is forbidden to intrude upon them.
    • It represents our Founders' intent to treat each person as a sovereign, vested with certain inalienable rights that no government can take away. Individuals willingly transfer some of their rights to their local and state governments for their protection, but they DON'T agree to transfer any such rights or responsibilities to a federal or central government other than those that are clearly and expressly listed in the Constitution. Government roles were always intended to be narrowly-construed so as not to burden the sovereign people or divest them of their God-given rights.
    • Is a shield, to protect each individual against the unlawful acts of the federal government. It is NOT a sword for the government to slice away rights and liberties.
    • It stands for the fundamental proposition that in a free society, and especially in a constitutional republic, people do not require constitutional authority to act and to exercise their rights. Government does.

    A social contract is an agreement intended to explain the appropriate relationship between individuals and their governments. People form an implicit social contract, ceding their natural rights to an authority to protect them from abuse and from the actions of depraved individuals. John Locke, one of the most influential philosophers of government of the Enlightenment Era, explained that people escape their primitive state by forming into communities and thus entering a social contract under which the state provides protective services to its citizens. Locke regarded this type of contract as revocable. A government depends on the consent of those who are governed, which may be withdrawn at any time, thus dissolving the agreement and thereby invalidating the government. That is what Thomas Jefferson meant when he wrote in the Declaration of Independence: ""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, -- 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, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

    Thomas Paine, in his Rights of Man, wrote: "The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a contract with each other to produce a government, and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist."

    While we today barely talk about this fundamental concept, the States were keenly aware of the relationship created by the Constitution and obligations associated with it. That is why it is so important to read contemporaneous historical documents to understand our history and especially our Constitution and its foundations. Look at the phraseology officially given by the state of Virginia when it finally adopted (reluctantly) the Constitution on June 25, 1788:

    The Virginia Ratification of the Constitution of the United States --

    "We the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the general assembly, and now met in convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, Do, in the name and on behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power nor granted thereby, remains with them and at their will; and therefore no right, of any denomination, can be cancelled, abridges, restrained or modified by the congress, by the senate or house of representatives acting in any capacity, by the president or any department, or officer of the United States, except in those instances in which power is given by the constitution for those purposes; and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States."
The United States Constitution
    We all know that Virginia, and other states as well, refused to ratify the Constitution until special assurances were given that the federal government would remain constrained and would not burden individual rights. That is why several delegates to the Constitutional Convention refused to sign the document - Virginia's George Mason and Edmund Randolph, New York's John Lansing Jr. and Robert Yates, Maryland's Martin Luther and John Francis Mercer, and Massachusetts' Elbridge Gerry. One of those assurances was the addition of a Bill of Rights and others were given in The Federalist Papers, written by James Madison and Alexander Hamilton, two of the delegates and drafters of the Constitution. The States, in general, were fearful of a government that would have the tendency to become increasingly centralized and destructive of state sovereignty and ratification wasn't taken very lightly at all. It took almost two years, generated some heated debate (including a suggestion of secession by Patrick Henry), generated transcripts that we are able to consult today as to the meaning and intent of the Constitution, and caused many to wonder whether they weren't frustrating the goals they sought to achieve with the American Revolution.

    As I explained in my article, "The Proper Role of Government," of December 2011, in every compact or contract between two or more parties, there is mutual obligation. The failure of one of the contracting parties to perform a material part of the agreement entirely releases the obligation of the other. This, in fact, was the position of the state of South Carolina in its "Declaration of Secession" (adopted on December 24, 1860):

    The People of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue....

    In the year 1765, that portion of the British Empire embracing Great Britain, undertook to make laws for the government of that portion composed of the thirteen American Colonies. A struggle for the right of self-government ensued, which resulted, on the 4th July, 1776, in a Declaration by the Colonies, "that they are, and of right ought to be, FREE AND INDEPENDENT STATES....

    They further solemnly declared that whenever any "form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute a new government." Deeming the Government of Great Britain to have become destructive of these ends, they declared that the Colonies "are absolved from all allegiance to the British Crown...."

    In pursuance of this Declaration of Independence, each of the thirteen States proceeded to exercise its separate sovereignty; adopted for itself a Constitution, and appointed officers for the administration of government in all its departments--Legislative, Executive, and Judicial. For purposes of defense, they united their arms and their counsels; and, in 1778, they entered into a league known as the Articles of Confederation, whereby they agreed to entrust the administration of their external relations to a common agent, known as the Congress of the United States, expressly declaring, in the first article, "that each State retains its sovereignty, freedom and independence...."

    Thus were established the two great principles asserted by the Colonies, namely: the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it is instituted....

    In 1787, Deputies were appointed by the States to revise the Articles of Confederation, and...these Deputies recommended, for the adoption of the States...the Constitution of the United States.

    The parties to whom this Constitution was submitted, were the several sovereign States; they were to agree or disagree, and when nine of them agreed, the compact was to take effect among those concurring; and the General Government, as the common agent, was then to be invested with their authority....

    By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers were restrained, which necessarily implied their continued existence as sovereign States. But, to remove all doubt, an amendment was added, which declared that 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....

    We hold that the mode of its [the United States's] formation subjects it to a...fundamental principle: the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other.... We assert, that fourteen of the States have deliberately refused for years past to fulfill their constitutional obligations....

    The Declaration of Secession (it's full title reading "Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina From the Federal Union") acknowledged that the federal government is "a common agent" of the States. This means that from South Carolina's understanding of the compact, the federal government was intended to work on behalf of the States.... each one fairly and equally.

    Today, we all feel the federal government breathing too deeply down our backs. We don't like the fact that it knows a little too much about us or can if it wants to. We don't like the fact that at any point in time, we are very likely breaking a law or regulation that we know absolutely nothing about. We don't like the fact that government makes a social statement about every aspect of community and public life. Communities have lost their 'local flavor," unless those communities have become just too undesirable for most people to want to live. The pessimism we feel in this land marked by Lady Liberty is because the balance of power has shifted away from the States (where it is closest to the people and therefore more responsible to their needs and interests) and the People themselves. The shift has been a slow, but steady descent into a culture that our founding patriots fought a Revolution to avoid. To put one's finger on the reason, it would most certainly have to be the failure of elected officials to honor their oaths to the very foundation of our republic - the Constitution. Government has been run willy nilly and at the discretion of omnipotent leaders who have been too willing to sacrifice freedom and the proper, balanced rule of law for a quick fix. They've violated, perverted, ignored, and subverted the Constitution by their actions. Power has proven to be a tempting mistress. Citizen legislators have become beltway professionals. And the emphasis on local government and people, as promised by Founding Fathers, has given way to a centralization of power in Washington DC and the socialization of the people for their easiest management and their best service to the government. The shift away from the 'Individual' to the 'Government' has resulted from the following:

    • By the concentration of power in the government as to what the Constitution means and how it is to be interpreted. Consider this: When a controversy arises over what the Constitution means and whether a particular act or law exceeds its bounds, who or what body should be entrusted to make that decision? Do you think our Founders (understanding that our government was a creation of the People and the States and never to burden their sovereignty, except for a few narrow exceptions; Article I and II) intended the Supreme Court to be the ultimate arbiter and interpreter? Since the federal courts are themselves a branch of the federal government, how can the people expect them to be impartial? The federal government, which the states themselves created and took great pains to define, cannot hold a monopoly on constitutional interpretation and cannot decide for itself what the extent of its own powers are. As Thomas Woods wrote: "That would mean that the people are governed by the mere discretion of their rules rather than by the Constitution."
    • With the 14th, 16th, and 17th Amendments
    • With the erosion of States' rights and the assertion of State sovereignty
    • The interpretation of the Supreme Court that the 'elastic clauses" of the Constitution ('Commerce' Clause, the 'General Welfare' Clause, and the 'Necessary & Proper' Clause), in total disregard to all the writings and assurances provided for our benefit by our Founders, pointedly addressed in the Federalist Papers, explained in the State ratifying conventions, and the wording of Constitution itself, confer additional and greatly expanded, implied powers.
    • Several decisions by the Supreme Court which amount to 'judicial activism' rather than strict interpretations of the Constitution. (For too many years, and for too many important cases, Supreme Court justices have willingly ignored the writings of our Founding Fathers in their deliberations to concentrate greater power in the federal government).

    References to the Federalist Papers in decisions from the high court have only become particularly popular since the beginning of the Rehnquist Court in 1986. Luckily, there has been a substantial increase in the frequency of citations to this authority in the last two decades so maybe the leftward pendulum of the Court is now swinging to the right to somehow... hopefully, bring our government back in line with a more strict reading of the Constitution and help get it off our backs, out of our pockets, and out of our way so we can be productive.

    But we just can't hope for the Supreme Court to re-establish proper constitutional bounds on government, re-assert the proper and intended balance of power, re-interpret the Constitution to construe the elastic clauses strictly and narrowly as our Founders intended, and re-affirm the true design of our government because we can't count on the justices to do the right thing. It's the hard thing to do and an unpopular one too many groups who believe the Constitution must be weakened in order to create a new social order. It requires discipline and a backbone. Therefore, the Court will likely not take that route - the "high road."

    So how can we re-establish the proper balance between the People and government, before it's too late? How can we reign in the centralization and exceeding control of government? The answer, most simply, is nullification - the action of a State to declare when the federal government has stepped outside its constitutional bounds and then declare those actions null and void and therefore unenforceable. Nullification, as a States' rights principle originally proposed by the Federal Farmer (anti-Federalist paper) and then by Thomas Jefferson, says that the States', being closest and most responsive to the people, are the sovereigns that are the proper guardians of individual liberty. If a federal law exceeds the power in the Constitution or violates the proper balance of power between the government and the states, then it is up to the States, the parties to the federal compact that is our Constitution, to declare it so and then refuse to enforce it. It would be absurd to wait for the federal government to condemn its own law or policy or department.